Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 21 September 2017,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
John Bram hall (England), member
Johan v an Gaalen (S outh Africa), member
Pav el Piv ov arov (Rus s ia), member
Moham ed Al S aikhan (S audi Arabia), member
on the claim presented by the player,
Play er 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 cas e
1.
On 16 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 from the date of signing until 31 May 2016.
2.
According to art. 3 of the employment contract, the Claimant was entitled, inter
alia, to receive EUR 1,500,000 for the season 2015/2016 payable in 10 equal monthly
instalments of EUR 150,000 as from the 30th day of August 2015 until the 30th day of
May 2016.
3.
On 13 July 2015, the Claimant and the Respondent signed a “Settlement and
Termination Agreement” (hereinafter: the agreement), pursuant to which the
“terms and conditions for payment of outstanding allowances from the
employment contract” and the “terms and conditions to mutually terminate” the
employment contract were agreed upon.
4.
More specifically, according to art. 2b of the agreement, the Claimant and the
Respondent agreed “that the [Respondent] is obliged to pay the [Claimant] the
amount of net EUR 850,000 … instead of net EUR 1,500,000 … as compensation to
cancel the employment agreement in case the [Respondent] fulfils its obligations
and pays the amounts stated below in time and in full”.
5.
In particular, according to the same provision of the agreement, the Respondent
had to pay the Claimant EUR 850,000 in 10 monthly instalments of EUR 85,000 on
the 30th (28th in February) day of each month from September 2015 to June 2016.
6.
Furthermore, according to art. 3 of the agreement, “in case of non payment of one
of the instalments stated above for more than 60 days, the agreed amount stated in
article 2/b will be annulled and the Parties will go back to the conditions and the
amounts payable for the 2015/2016 season in the Employment Agreement dated 16
July 2013 (i.e. EUR 1,500,000) which is referred in the Article 1 of this Agreement”.
7.
By letter dated 31 December 2015, the Claimant notified the Respondent that more
than 60 days had elapsed since 30 October 2015, when the monthly instalment of
EUR 85,000 fell due. Consequently, the Claimant reminded the Respondent that this
occurrence had triggered art. 3 of the agreement, according to which the amount
stated in art. 2b of the agreement is annulled and the Claimant is entitled to receive
the original amount of EUR 1,500,000 for the 2015/2016 season. With the same
letter, the Claimant gave the Respondent 10 days to proceed with the payment of
EUR 1,500,000.
8.
By letter dated 21 January 2016 addressed to the Respondent, the Claimant
reiterated the above, arguing that, by then, EUR 750,000 (i.e. the monthly EUR
150,000 from August 2015 to December 2015 in accordance with the employment
contract) had fallen due whereas he had received EUR 170,000 (i.e. two payments of
EUR 85,000) only. Therefore, the Claimant put the Respondent in default of
payment of EUR 580,000 giving the latter 10 days to pay.
Player A, Country B / Club C, Country D
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9.
On 8 February 2016, the Claimant lodged a claim against the Respondent in front of
FIFA requesting that the Respondent be ordered to pay the total amount of EUR
1,330,000, consisting of EUR 130,000 for September 2015 and EUR 150,000 per
month as from October 2015 to May 2016. Following further payments received
from the Respondent and upon FIFA’s request to inform about the up-to-date
position in the matter, the Claimant adapted his claim (cf. point I./17. below).
10.
The Claimant argued that, after signing the agreement with the Respondent, the
latter only paid the first instalment of EUR 85,000 due on 30 September 2015 in a
timely manner. The Claimant further argued that the second payment of EUR
85,000 due on 30 October 2015 only arrived on 4 January 2016, thus triggering art. 3
of the agreement, as more than 60 days had elapsed from the date on which the
payment fell due. Therefore, the Claimant argued that he was entitled to receive
the original monthly instalment established in the employment contract, i.e. EUR
150,000.
11.
In its reply, the Respondent argued that it had paid the first instalment of EUR
85,000 on 30 September 2015. With regard to the date of payment of the second
instalment, due on 30 October 2015, the Respondent explained that, due to internal
proceedings related to the election of the new president and the takeover by a new
management, it could not proceed to pay the instalment for October 2015 on the
due date. The Respondent further explained that, in order not to trigger art. 3 of
the agreement, it had prepared a ‘protocol’ to be agreed upon and signed by the
Claimant, according to which the payments due on 30 October 2015, 30 November
2015 and 30 December 2015 were shifted to two instalments of EUR 120,000 and
EUR 135,000 to be paid on 30 January and 28 February 2016.
12.
In continuation, the Respondent argued that, since it could not get the written
consent of the Claimant on the above-mentioned ‘protocol’, it had to proceed to
the payment of the EUR 85,000 on the last day of the time limit. The Respondent
further argued that it had made the payment on 31 December 2015, and not on 4
January 2016 as the Claimant stated, and that thus it had allegedly respected the
deadline of 60 days from when it was due, i.e. 30 October 2015. In support of its
claim, the Respondent submitted a non-translated bank statement of the payment
which it was allegedly issued on 31 December 2015.
13.
In addition, the Respondent pointed out that it had paid 2 further instalments of
EUR 85,000 each.
14.
For these reasons, the Respondent concluded that it had not breached the
agreement and that it was undertaking to continue to pay the Claimant EUR 85,000
per month according to the agreement. Consequently, the Respondent asked that
the Claimant’s claim be rejected.
15.
In this respect, the Respondent held that it made further payments to the Claimant,
in total 6, and submitted bank statements of 5 payments of EUR 85,000 with value
dates of 29 March 2016, 29 April 2016, 27 May 2016, 23 June 2016, and 25 July 2016.
The Respondent alleged having made a further payment of EUR 85,000 on 24
August 2016.
Player A, Country B / Club C, Country D
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16.
In relation to the above and further to FIFA’s request, the Claimant acknowledged
all the above-described payments in the total amount of EUR 850,000 made by the
Respondent but insisted on his claim that he was entitled to the original monthly
instalment of EUR 150,000 in accordance with art. 3 of the agreement and given the
Respondent’s late remittance of the October 2015 instalment.
17.
In consideration of that, the Claimant claimed the total amount of EUR 650,000,
consisting of 10 instalments of EUR 65,000 plus interest of 5% p.a. as follows:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
18.
Instalment of 30 October 2015: 5% on EUR 150,000 as from 31 October 2015
until 4 January 2016; 5% on EUR 65,000 as from 4 January 2016 until effective
payment;
Instalment of 30 September 2015: 5% on EUR 65,000 as from 1 October 2015
until effective payment;
Instalment of 30 August 2015: 5% on EUR 150,000 as from 31 August 2015
until 1 February 2016; 5% on EUR 65,000 as from 1 February 2016 until
effective payment;
Instalment of 30 November 2015: 5% on EUR 150,000 as from 1 December
2015 until 1 February 2016; 5 % on EUR 65,000 as from 1 February 2016 until
effective payment;
Instalment of 30 December 2015: 5% on EUR 150,000 as from 31 December
2015 until 30 March 2016; 5% on EUR 65,000 as from 30 March 2016 until
effective payment;
Instalment of 30 January 2016: 5% on EUR 150,000 as from 31 January 2016
until 2 May 2016; 5% on EUR 65,000 as from 2 May 2016 until effective
payment;
Instalment of 28 February 2016: 5% on EUR 150,000 as from 29 February 2016
until 27 May 2016; 5% on EUR 65,000 as from 27 May 2016 until effective
payment;
Instalment of 30 March 2016: 5% on EUR 150,000 as from 31 March 2016 until
23 June 2016; 5% on EUR 65,000 as from 23 June 2016 until effective payment;
Instalment of 30 April 2016: 5% on EUR 150,000 as from 1 May 2016 until 25
July 2016; 5% on EUR 65,000 as from 25 July 2016 until effective payment;
Instalment of 30 May 2016: 5% on EUR 150,000 as from 31 May 2016 until 24
August 2016; 5% on EUR 65,000 as from 24 August 2016 until effective
payment.
The Respondent, for its part, reiterated that its payment on 31 December 2015 was
timely and compliant with the agreement and that, in consideration of its further
payments of the various EUR 85,000 instalments, it had completed the payment of
all the amounts according to the agreement.
Player A, Country B / Club C, Country D
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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 stake. In this
respect, the DRC took note that the present matter was submitted to FIFA on 8
February 2016. Consequently, the DRC concluded that the 2015 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules) is 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 2016) the DRC 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.
Furthermore, the DRC 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, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the
Regulations (edition 2016) and considering that the present claim was lodged in
front of FIFA on 8 February 2016, the 2015 edition of the Regulations on the Status
and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been established,
the members of 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.
In this respect, the DRC acknowledged that, following the conclusion of an
employment contract on 16 July 2013, the Claimant and the Respondent signed a
termination agreement, on 13 July 2015, by means of which they regulated their
financial relationship and which provided for a specific clause to be applied in case
the Respondent failed to remit the agreed instalments to the Claimant within the
relevant time limits.
6.
More specifically, the members of the Chamber observed that, by means of said
agreement, the parties had agreed to a total remuneration of EUR 850,000 to be
paid by the Respondent in favour of the Claimant, in lieu of the EUR 1,500,000
provided in the original employment contract for the 2015/2016 season. According
to said agreement, the Respondent undertook to pay the Claimant EUR 850,000 in
10 monthly instalments of EUR 85,000 on the 30th (28th in February) day of each
month from September 2015 to June 2016.
Player A, Country B / Club C, Country D
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7.
Equally, the Chamber noted that the agreement established in its art. 3 that “in
case of non payment of one of the instalments stated above for more than 60 days,
the agreed amount stated in article 2/b will be annulled and the Parties will go back
to the conditions and the amounts payable for the 2015/2016 season in the
Employment Agreement dated 16 July 2013 (i.e. EUR 1,500,000) […]”.
8.
In continuation, the members of the Chamber noted that according to the Claimant,
the Respondent paid the 30 October 2015 instalment more than 60 days after the
relevant time limit had elapsed, which triggered the application of art. 3 of the
agreement. The Claimant maintained that, therefore, he is entitled to receive the
amount payable for the 2015/2016 season in accordance with the employment
contract, i.e. EUR 150,000 per month as from the 30th day of August 2015 until the
30th day of May 2016, totalling EUR 1,500,000.
9.
The Chamber took into account that the Respondent, for its part, rejected the claim
stating that it remitted the 30 October 2015 instalment to the Claimant on 31
December 2015 in a timely manner and in compliance with the agreement,
contesting that the application of art. 3 of the agreement was triggered. In
addition, the Respondent held that it had completed the payment of all the
amounts according to the agreement.
10.
Having said this, the Chamber concluded that the 60 days established in art. 3 of the
agreement with respect to the instalment due on 30 October 2015 elapsed on 29
December 2015. In this respect, the DRC pointed out that it is undisputed and
acknowledged by the Respondent itself that it remitted the 30 October 2015
instalment only on 31 December 2015.
11.
As a consequence, the members of the Chamber established that the Respondent
paid the 30 October 2015 instalment more than 60 days of expiry of the relevant
deadline, which fact triggered the consequences regarding late payment envisaged
in art. 3 of the agreement.
12.
Therefore, the Chamber decided that the Claimant was entitled to receive the
amount of EUR 1,500,000 from the Respondent in accordance with the terms of the
employment contract for the 2015/2016 season, i.e. EUR 150,000 per month as from
the 30th day of August 2015 until the 30th day of May 2016.
13.
In light of the above, and bearing in mind that the Respondent undisputedly
already paid the Claimant the amount of EUR 850,000, the DRC decided that, in
accordance with the general legal principle of “pacta sunt servanda”, the
Respondent is liable to pay the amount of EUR 650,000 to the Claimant.
14.
In addition, taking into account the Claimant’s claim, the Chamber decided to
award the Claimant interest of 5% p.a. as of the day following the day on which the
relevant payments fell due in accordance with the employment contract until the
date of effective payment.
15.
The Chamber concluded its deliberations in the present matter by rejecting any
further claim of the Claimant.
Player A, Country B / Club C, Country D
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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, w ithin 30 day s as from the
date of notification of this decision, the amount of EUR 650,000, plus 5% interest
p.a. as follows:
a. 5% p.a. as from 31 October 2015 until 31 December 2015 on the amount of
EUR 150,000;
b. 5% p.a. as from 31 December 2015 until the date of effective payment on the
amount of EUR 65,000;
c. 5% p.a. as of 1 October 2015 until the date of effective payment on the
amount of EUR 65,000;
d. 5% p.a. as from 31 August 2015 until 29 January 2016 on the amount of EUR
150,000;
e. 5% p.a. as from 29 January 2016 until the date of effective payment on the
amount of EUR 65,000;
f. 5% p.a. as from 1 December 2015 until 1 February 2016 on the amount of EUR
150,000;
g. 5% p.a. as from 1 February 2016 until the date of effective payment on the
amount of EUR 65,000;
h. 5% p.a. as from 31 December 2015 until 29 March 2016 on the amount of EUR
150,000;
i. 5% p.a. as from 29 March 2016 until the date of effective payment on the
amount of EUR 65,000;
j. 5% p.a. as from 31 January 2016 until 29 April 2016 on the amount of EUR
150,000;
k. 5% p.a. as from 29 April 2016 until the date of effective payment on the
amount of EUR 65,000;
l. 5% p.a. as from 29 February 2016 until 27 May 2016 on the amount of EUR
150,000;
m. 5% p.a. as from 27 May 2016 until the date of effective payment on the
amount of EUR 65,000;
n. 5% p.a. as from 31 March 2016 until 23 June 2016 on the amount of EUR
150,000;
o. 5% p.a. as from 23 June 2016 until the date of effective payment on the
amount of EUR 65,000;
p. 5% p.a. as from 1 May 2016 until 25 July 2016 on the amount of EUR 150,000;
q. 5% p.a. as from 25 July 2016 until the date of effective payment on the
amount of 65,000;
r. 5% p.a. as from 31 May 2016 until 24 August 2016 on the amount of EUR
150,000;
s. 5% p.a. as from 24 August 2016 until the date of effective payment on the
amount of 65,000.
Player A, Country B / Club C, Country D
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3.
In the event that the aforementioned sum plus interest 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 request filed by the Claimant is rejected.
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.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 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 (CAS)
Avenue de Beaumont 2
CH-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:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
Player A, Country B / Club C, Country D
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