Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 14 September 2018,
in the following composition:
Geoff Thom s on (England), Chairman
Jerom e Perlem uter (France), member
Elv is Chetty (Seychelles), member
S tefano S artori (Italy), member
Takuy a Yam azaki (Japan), 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 between the parties
I.
Facts of the cas e
1.
On an unspecified date, the Player of Country B, Player A (hereinafter: the
Claimant) and the Club of Country D, Club C (hereinafter: the Respondent),
concluded an employment contract (hereinafter: the contract), valid for the
seasons 2015/2016 and 2016/2017 in Country D.
2.
On 23 June 2016, the Claimant lodged a claim against the club before FIFA
regarding outstanding remuneration and compensation for breach of contract,
requesting the total amount of EUR 268,000.
3.
On 16 August 2017, the Claimant and the Respondent signed a document titled
“Settlement agreement” (hereinafter: the settlement agreement).
4.
The settlement agreement stipulated, inter alia, the following:
“1 The [Respondent] shall make the following payments to the [Claimant] :
- EUR 150,000 by no later than 30 September 2017. […]
3. Upon receipt of the full payment, the [Claimant] shall withdraw his claim against
the [Respondent] in front of the FIFA Dispute Resolution Chamber by means of a
letter […].
5. In case the payment as per clause 1 is not made in due time, the [Claimant] shall
have the right to immediately request that the proceedings in front of the FIFA
Dispute Resolution Chamber continue, in case of any delay in payment, it is
agreed between the parties that an irrevocable and unconditional penalty of EUR
100,000 must be paid by the [Respondent] to the [Claimant], in addition to any
amount awarded by FIFA DRC.
6. With the consummation and full implementation of this Agreement, the parties
declare themselves fully settled as regards any mutual claims, rights or
obligations under any existing and/or previous contractual relationship between
the parties.”
5.
On 29 September 2017, the Respondent paid the Claimant, the amount of EUR
100,000 and on 2 October 2017, the Respondent paid the Claimant, the amount of
EUR 50,000.
Player A, Country B / Club C, Country D
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6.
On 29 November 2017, the Claimant lodged a claim against the Respondent in
front of FIFA requesting the amount of EUR 118,000. The amount claimed was
broken down as follows:
EUR 100,000 in application of the penalty clause of the settlement agreement;
EUR 18,000 as unpaid balance from the claim lodged on 23 June 2016. In this
regard, the Claimant explained that this amount corresponds to the amount
claimed in his claim of 23 June 2016 i.e. EUR 268,000, minus mitigation of EUR
100,000 corresponding to his remuneration with his new club for the overlapping
period and minus the EUR 150,000 paid in regards to the settlement agreement.
7.
In his claim, the Claimant argued that even though the totality of the amounts
provided by the settlement agreement had been paid, according to him, the
payment was late, and, in consequence, the penalty clause became applicable.
8.
In its reply, the Respondent argued that the deadline for the payment of the
amount in the settlement agreement was on 30 September 2017, which was a
Saturday, which explains, that the last part of the payment was made on the
following business day i.,e. Monday, 2 October 2017, and that as such, there is no
delay.
9.
In his replica, the Claimant rejected the Respondent’s argumentation, and
sustained that the settlement agreement was signed in August 2017, giving
enough time to the Respondent to pay before the deadline. The Claimant also
argued that he was claiming not the just the amount provided in the agreement,
but also the unpaid balance from his original claim.
10.
Notwithstanding, the Claimant amended his claim, reducing his request for relief
as he estimated that the penalty clause would be lowered “at 25% of the
settlement amount, i.e. 37,500 EUR”. In consequence, the Claimant requested the
payment of the total amount of EUR 55,500, corresponding to EUR 18,000 from
the original claim and EUR 37,500 from the lowered penalty clause, in order to
avoid further proceedings.
11.
In its duplica the Respondent held that the penalty clause is excessive, as the
Claimant requested EUR 100,000 for an alleged one day-delay. The Respondent
further held that the Claimant did not suffer any loss.
Player A, Country B / Club C, Country D
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12.
The Claimant informed FIFA that on 15 June 2016, he signed an employment
contract with the Club of Country D, Club E, valid as from 9 June 2016 until 31 May
2019, with an annual salary of EUR 100,000 for the 2016/2017 season,
corresponding to the overlapping period.
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 case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 29 November
2017. Consequently, the 2017 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. article 21 of the 2017 and
2018 editions 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 2018), 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.
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 2 of the Regulations on the Status and Transfer of Players (editions
2016 and 2018), and considering that the present claim was lodged on 29 November
2017, the 2016 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, the Chamber first acknowledged that the Claimant and the
Respondent signed an employment contract valid for the season 205/2016 and
2016/2017.
6.
In addition, the Chamber observed that on 23 June 2016, the Claimant had
previously lodged a claim against the Respondent in front of FIFA claiming
outstanding remuneration and compensation for breach of contract in the total
amount of EUR 268,000.
Player A, Country B / Club C, Country D
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7.
In this regard, the DRC took note that the Claimant and the Respondent signed a
settlement agreement on 16 August 2017, in accordance with which the Claimant
was entitled to EUR 150,000 payable “by no later than 30 September 2017”. The
Chamber further acknowledged that the settlement agreement provided the
following: “3. Upon receipt of the full payment, the [Claimant] shall withdraw his
claim against the [Respondent] in front of the FIFA Dispute Resolution Chamber by
means of a letter […].
5. In case the payment as per clause 1 is not made in due time, the [Claimant] shall
have the right to immediately request that the proceedings in front of the FIFA
Dispute Resolution Chamber continue, in case of any delay in payment, it is agreed
between the parties that an irrevocable and unconditional penalty of EUR 100,000
must be paid by the [Respondent] to the [Claimant], in addition to any amount
awarded by FIFA DRC.
6. With the consummation and full implementation of this Agreement, the parties
declare themselves fully settled as regards any mutual claims, rights or obligations
under any existing and/or previous contractual relationship between the parties.”
8.
In continuation, the members of the Chamber noted that the Claimant lodged a
claim against the Respondent claiming that the penalty clause of the settlement
agreement became applicable, since according to him, the payment of the amount
provided by the settlement agreement was done late. Consequently, the Claimant
asks to be awarded his outstanding dues from the first claim lodged in front of FIFA
on 23 June 2016 in the amount of EUR 18,000 corresponding to EUR 268,000, minus
mitigation of EUR 100,000 corresponding to his remuneration with his new club for
the overlapping period and minus the EUR 150,000 paid in regards to the
settlement agreement. The Claimant further requested the payment of the penalty
clause in the amount of EUR 100,000, which he later amended to EUR 37,500 as he
considered that the DRC might see fit to lower the penalty clause to an amount
corresponding to 25% of the original penalty amount of the settlement.
9.
The members of the DRC then observed that the Respondent held that there was no
delay since the deadline for the payment provided by the settlement agreement
was on 30 September 2017, which was a Saturday, and according to the
Respondent, the last part of the payment was made on the next working day, i.e.
on Monday 2 October 2017. The DRC noted that the Respondent further argued
that the amount provided in the penalty clause was in any case excessive and that
the Claimant suffered no loss since he received the total amount provided by the
settlement agreement.
10.
In view of the dissenting viewpoint of the parties with respect to the applicability of
the penalty clause contained in the settlement agreement, the Chamber, to start
with, focussed its attention on said contractual clause.
Player A, Country B / Club C, Country D
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11.
In this regard, the DRC was of the opinion that penalty clauses may be freely
entered into by the contractual parties and may be considered acceptable, in the
event that the pertinent written clause meets certain criteria such as proportionality
and reasonableness.
12.
In this respect, the Chamber first decided to analyse the applicability of such clause,
as the Respondent deemed that the penalty clause could not be applied since
according to it, the payment of the amount provided in the settlement agreement
had not been late.
13.
In this context, the DRC recalled that following the settlement agreement, the
payment due under it had to be made “by no later than 30 September 2017”.The
DRC also observed that the total amount of EUR 150,000 had been paid in two
instalments of EUR 100,000 on 29 September 2017 and of EUR 50,000 on 2 October
2017.
14.
The DRC further recalled the argumentation of the Respondent, according to which
the second payment had been made after the deadline provided by the settlement
agreement since that deadline was set on a non-working day. However, the
Chamber was of the view that the deadline provided by the settlement agreement
had been freely agreed upon by the parties and therefore the Respondent was fully
aware of it. Moreover, the DRC took note that the Respondent had paid the first
part of the EUR 150,000 on 29 September 2017, before the end of the deadline, and
with this in mind, the DRC considered that the Respondent had been in a position
to perform the entirety of the payment before the end of the provided deadline.
15.
In light of the above, the Chamber was of the unanimous opinion that the full
payment of the amount provided by the settlement agreement had not been done
within the deadline provided therein, activating the penalty clause of said
agreement.
16.
Having said that, the DRC decided to analyse the penalty clause in itself to
determine whether it could be applied as such.
17.
In this regard, the Chamber highlighted that in order to determine as to whether a
penalty clause is to be considered acceptable, the specific circumstances of the
relevant case brought before it shall also be taken into consideration.
18.
In the specific case at hand, the members of the Chamber deemed that the penalty
clause of 100,000 in case of the late payment of the total amount of EUR 150,000
represented 67% of the total amount to be paid under the settlement agreement,
and as such would have been disproportionate. However, the Chamber taking into
account the amended claim of the Claimant in which he lowered his request
pertaining to the penalty clause to EUR 37,500, deemed that this new amount,
Player A, Country B / Club C, Country D
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representing 25% of the amount to be paid under the settlement agreement was
both proportionate and reasonable in the case at hand.
19.
Consequently, the Dispute Resolution Chamber concluded that in accordance with
the general principle of pacta sunt servanda, the Respondent is liable to pay to the
Claimant the amount of EUR 37,500 corresponding to the lowered amount of the
penalty clause, in light of the Respondent’s failure to pay the full amount provided
by the settlement agreement in a timely manner.
20.
Furthermore, the DRC recalled that in application of art. 5 of the settlement
agreement, the Claimant requested the balance of the original claim, which he
calculated as EUR 18,000. In this regard, the DRC observed that the first part of the
penalty clause stated the following : “In case the payment as per clause 1 is not
made in due time, the player shall have the right to immediately request that the
proceedings in front of the FIFA Dispute Resolution Chamber continue […]”. Taking
into consideration the request of the Claimant to be awarded EUR 18,000 which
corresponded, according to him, to the amount he would have received had the
first claim be decided by the DRC, minus the amount received under the settlement
agreement.
21.
Taking into consideration all the documentation provided, and the fact that the
Respondent did not contest this claimed amount, the DRC was of the opinion that
the Claimant was entitled to the balance of the amounts due to him under the
original claim.
22.
Consequently, the DRC decided that the Respondent is liable to pay to the Claimant
EUR 18,000 as outstanding remuneration.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club C, has to pay to the Claimant the amount of EUR 18,000 as
outstanding remuneration, w ithin 30 day s as from the date of notification of this
decision.
3.
The Respondent has to pay to the Claimant the amount of EUR 37,500 as penalty,
w ithin 30 day s as from the date of notification of this decision.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are not paid by the Respondent within the stated
time limits, interest at the rate of 5% p.a. will fall due as of expiry of the
aforementioned time limit and the present matter shall be submitted, upon request,
to FIFA’s Disciplinary Committee for consideration and a formal decision.
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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.
*****
Note relating to the m otiv ated decision (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
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-caFor the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
Player A, Country B / Club C, Country D
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