Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 29 September 2016,
by Theo van Seggelen (Netherlands), DRC judge,
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.
On 27 May 2012, the player from country B, Player A (hereinafter: the
Claimant), and the club from country D, Club C (hereinafter: the Respondent),
signed an employment contract (hereinafter: the contract) valid as from the
date of signature until 27 May 2015.
2.
According to Appendix 1 of the contract, the Respondent undertook to pay
the Claimant the following fixed monthly salary:
- EUR 19,000 for the period from 27 May 2012 to 27 May 2013;
- EUR 22,050 for the period from 27 May 2013 to 27 May 2014;
- EUR 24,150 for the period from 27 May 2014 to 27 May 2015.
3.
On 28 February 2014, the Claimant and the Respondent signed an “Additional
Agreement to Contract from 27 May 2012” (hereinafter: the termination
agreement), by means of which they terminated the contract as from 28
February 2014.
4.
According to art. 4 of the termination agreement, the Respondent committed
to pay the amounts of EUR 49,000 and of 177,625 to the Claimant, as follows:
- EUR 11,000 on 10 March 2014;
- EUR 22,000 on 15 April 2014;
- EUR 16,000 and 100,000 on 15 May 2014;
- 77,625 on 15 June 2014.
5.
Moreover, according to the same art. 4, the Respondent undertook to pay the
aforementioned amounts in the bank account indicated by the Claimant in the
termination agreement.
6.
By means of a letter dated 29 September 2014, the Respondent asked the
Claimant to be provided “with the opportunity to repay the outstanding debt
owed to you in full until the 30 October 2014”. In such letter, the Respondent
also committed to pay a penalty “in the amount of 10% of the existing debt
for each month of the delay in the payment” in case the payment was not
performed within 30 October 2014.
7.
On 6 February 2015, the Respondent informed the Claimant that it paid the
amount of 304,895 on 30 December 2014 and stated to have fulfilled its
obligations through such payment. In particular, the Respondent pointed out
that the payment was made in currency and to a bank account different from
that set out in the agreement because of alleged “changes and restrictions in
the currency legislation of country D”.
8.
On 9 July 2015, the Claimant addressed a letter to the Respondent by means of
which he contested that the Respondent had fulfilled its obligations as it
allegedly failed to perform the transfer of the due amount to the bank
Player A, country B / Club C, country D
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account set out in art. 4 of the termination agreement. Moreover, through the
same letter, the Claimant put the Respondent in default for the amount of
“304,895 or the equivalent in Euro 15,855.17”, granting the Respondent ten
days for the payment.
9.
On 20 July 2015, the Respondent replied to the Claimant indicating that it
fulfilled its obligations as it “transferred on 30 December 2014 to his account
in the bank of country D the remaining amount of debt in the currency of
country D”. Moreover, the Respondent reiterated that the payment was
performed in such way because of alleged restrictions imposed by the
Government and the bank of country D on the transfer of currency to foreign
accounts.
10.
On 31 July 2015, the Claimant lodged a claim against the Respondent before
FIFA for breach of the termination agreement, requesting the payment of the
following amounts:
a)
EUR 15,855 “or the equivalent” 304,895 as the outstanding amount as
per the termination agreement;
b)
the payment of “the debt penalty for each month of the delay, from 30
October 2014 until the fulfilment of the obligation”.
11.
In his claim, the Claimant pointed out that the Respondent had to perform the
payments at the bank account set out in the termination agreement and, as
this did not occur, the Respondent did not fulfil its obligations. In this regard,
the Claimant acknowledged a payment of EUR 41,047 from the Respondent in
the bank account indicated in the termination agreement, but highlighted
that the Respondent failed to pay the amount of 304,895 in the same bank
account, in this way failing the Respondent to comply with its obligations.
12.
In its reply, the Respondent stated that the payment of the claimed amount
was made on 30 December 2014. Moreover the Respondent emphasized that,
at the Claimant’s request, it provided him, on 31 March 2015, with a bank
certificate about “the admission of the abovementioned amount to his
account”.
13.
Furthermore, the Respondent considered that its obligations were fulfilled “in
a manner not inconsistent with the interests of the both parties, furthermore
the only possible in these circumstances”.
14.
The Respondent also added that no penalty was due to the Claimant as the
“parties have not agreed this penalty payment contractually”. Furthermore,
the Respondent considered that, should the penalty be applied, the same is
not reasonable or proportionate and it should be calculated on the period as
of 30 October until 30 December 2014 only.
Player A, country B / Club C, country D
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15.
In his replica, the Claimant repeated that the claimed amount was not received
by the Claimant at the bank account set out in the termination agreement,
emphasizing that all the previous payments were made by the Respondent to
such bank account.
16.
As to the claimed penalty, the Claimant alleged that “is a right that derives
from the nature of law itself”, being entitled to such penalty due to the
unfulfillment of the Respondent’s contractual obligations.
17.
In its duplica, the Respondent recalled its previous arguments and stressed that
the Claimant did not deny that the disputed amount had been transferred “to
the Player’s account in bank of country D on 30 December 2014”, as per bank
certificate provided on file. Moreover, the Respondent reiterated that there
was no legal basis for the application of any penalty and, in case the DRC
would award it, this should be applied only until 30 December 2014.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with
the matter at hand. In this respect, he took note that the present matter was
submitted to FIFA on 31 July 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 DRC judge referred to art. 3 par. 2 and 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and 2 in conjunction
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players
(edition 2016) he is competent to decide on the present matter, which
concerns an employment-related dispute with an international dimension
between a player from country B and a club from country D.
3.
In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on
the Status and Transfer of Players, the DRC judge confirmed that he may
adjudicate in the present dispute, the value of which does not exceed CHF
100,000.
4.
In continuation, the DRC judge analyzed which regulations should be
applicable as to the substance of the matter. In this respect, he confirmed that
in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (edition 2016), and considering that the present claim was
lodged on 31 July 2015, the 2015 edition of said regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
Player A, country B / Club C, country D
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5.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this
respect, he started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation submitted by the parties. However, the
DRC judge emphasised that in the following considerations he will refer only
to the facts, arguments and documentary evidence, which he considered
pertinent for the assessment of the matter at hand.
6.
First, the DRC judge noted that the parties entered into an employment
contract valid as from 27 May 2012 until 27 May 2015, which the parties
terminated on 28 February 2014 by signing a termination agreement,
according to which the Claimant committed to complete the payment of the
amounts of EUR 49,000 and of 177,625 within 15 June 2014.
7.
In continuation, the DRC judge acknowledged that it was undisputed that the
Respondent asked the Claimant to be provided with the opportunity to
complete the due payment within 30 October 2014 and committed to pay a
10% penalty in case such payments were not performed within such date.
8.
Furthermore, the DRC judge noted that it was also undisputed that the
Respondent informed the Claimant of having completed the due payment by
transferring the amount of 304,895 to the Claimant on 30 December 2014.
9.
In addition, the DRC judge noted that the Claimant alleged that the
Respondent did not comply with its obligations as he did not receive the
payment of the amount of EUR 15,855, or the equivalent 304,895, at the bank
account set out in the termination agreement. Furthermore, the DRC judge
noted that the Claimant, in his claim, requested the payment of the debt
penalty for each month of delay from 30 October 2014.
10.
In continuation, the DRC judge took note that the Respondent argued that it
paid the amount of 304,895 to a different bank account because of alleged
changes in Ukrainian legislation, but such bank account was anyway belonging
to the Respondent. In particular, the Respondent emphasized that the
Claimant did neither deny that the bank account, to which the alleged
payment of 304,895 was made, was belonging to the player nor that the
payment of such amount was actually made to such account.
11.
Having established the aforementioned, the DRC judge deemed that the
underlying issue in the present dispute was to determine whether the
Respondent fulfilled its contractual obligations towards the Claimant.
12.
In this context, the DRC judge wished to emphasize that is was not disputed by
the parties that the payment of 304,895 was performed to a bank account
belonging to the Claimant on 30 December 2014.
Player A, country B / Club C, country D
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13.
On account of the above, the DRC judge considered that the Respondent
fulfilled its obligation to provide the Claimant with payment of the due
amount and, thus, in accordance with the general legal principle of pacta sunt
servanda. Indeed, in case it would be determined that the Respondent needs
to make the relevant payment again, it would entail that the Respondent
receives the same amount twice.
14.
In continuation, having established that the Respondent paid the claimed
amount to the Claimant, the DRC judge analysed whether a penalty was
applicable due to the fact that the Respondent performed the payment after
the agreed date.
15.
In this context, the DRC judge deemed it appropriate to remind the parties
that the payment of a penalty in case of non-compliance must be expressly
agreed by both parties.
16.
With this in mind, the DRC judge pointed out that, in the case at stake, the
parties did not expressly agree, in the termination agreement, on a specific
penalty in case of non-compliance. In particular, the DRC judge was eager to
emphasize that the offer of the Respondent to amend the terms of the
termination agreement with a penalty in case of delayed payment was not
followed by the Claimant’s acceptance.
17.
In view of the above, the DRC judge considered that no penalty was agreed by
the parties and, thus, decided that no penalty was due to the Claimant.
18.
As a consequence thereof, the DRC judge concluded his deliberations by
rejecting the claim of the Claimant.
Player A, country B / Club C, country D
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III.
Decision of the DRC judge
The claim of the Claimant, Player A, is rejected.
*****
Note relating to the motivated decision (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, 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 DRC judge:
Marco Villiger
Deputy Secretary General
Player A, country B / Club C, country D
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