Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 28 October 2011,
by Mr Philippe Diallo (France), DRC judge,
on the claim presented by the player,
J,
as Claimant
and the club,
A FC,
as Respondent
I.
regarding an employment-related dispute
between the parties
Facts of the case
1.
On 4 May 2008, the player J (hereinafter: the Claimant) and the club A FC
(hereinafter: the Respondent) signed an employment contract (hereinafter: the
contract) valid as from 1 June 2008 until 31 May 2009.
2.
According to the contract, the Claimant was entitled to receive a total amount
of EUR 50,000, payable in 10 monthly instalments of EUR 5,000 each, of which
the first one is due on 1 August 2008.
3.
On 25 November 2008, the Claimant and the Respondent signed an agreement
(hereinafter: the first agreement) valid as from 1 November 2008 until “30 May
2009”, in which they cancelled ”the old agreement made, on the 1 July 2008”
and according to which the monthly salary would be reduced to EUR 3,000 and
the Claimant would receive 7 monthly instalments of EUR 3,000 each.
4.
On 9 May 2009, the parties signed another agreement (hereinafter: the second
agreement), according to which the Respondent acknowledged that it will pay
EUR 6,600 on that day and that an outstanding amount of EUR 12,000 had to
be paid in 4 equal instalments of EUR 3,000, payable each on the 25th day of
the months of June, July, August and September 2009. Additionally, the
second agreement states that “after this payment I have no more demands
from the Club for 2008/2009”.
5.
On 4 February 2010, the Claimant lodged a complaint before FIFA against the
Respondent claiming the amount of EUR 26,000 plus 4% interest p.a. on said
amount, amounting to a total of EUR 26,622.23, after having tried
unsuccessfully to find an amicable settlement with the Respondent.
6.
In this respect, the Claimant alleged that the reduction of his salary as agreed
in the first agreement was illegal. Therefore, the Claimant requested the
difference between the salary of the contract and the first agreement of EUR
2,000 regarding the months of November 2008, December 2008 and January
2009, amounting to EUR 6,000.
7.
Moreover, the Claimant held that the Respondent failed to pay him the salary
for the months of February, March, April and May 2009 of EUR 5,000 each,
amounting to EUR 20,000.
8.
After the investigation-phase in the present matter had been closed, the
Respondent rejected the Claimant’s allegation of the first agreement not
being valid, arguing that the only valid agreement to be taken into account is
the second agreement signed on 9 May 2009, since it was signed by both
2/7
parties. Therefore, the Respondent admitted being in debt towards the
Claimant in the amount of EUR 12,000 arising from the second agreement.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with
the case at hand. In this respect, he took note that the present matter was
submitted to FIFA on 4 February 2010. Consequently, the DRC judge concluded
that the 2008 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 par. 2 and 3 of
the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 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 2010), the DRC judge is competent to decide on the
present litigation, which concerns an employment-related dispute with an
international dimension between a player and a club.
3.
Furthermore, the DRC judge 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, he referred, on one hand, to art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (editions 2009 and 2010) and,
on the other hand, to the fact that the present claim was lodged on 4 February
2010. Therefore, the DRC judge concluded that the 2009 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 judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC
judge started by acknowledging the above-mentioned facts as well as the
documentation contained in the file.
5.
In this respect, the DRC judge deemed it appropriate to gather an overview of
the events leading to the present dispute. The DRC judge firstly acknowledged
that the Claimant and the Respondent had signed an employment contract on
4 May 2008, in accordance with which the Claimant was entitled to receive a
total amount of EUR 50,000 between 1 June 2008 and 31 May 2009, payable in
10 monthly installments, of EUR 5,000 each. Furthermore, the DRC judge
acknowledged that subsequently, on 25 November 2008, the Claimant and the
3/7
Respondent had signed the first agreement valid as of 1 November 2008 until
30 May 2009, in accordance with which the monthly salary was reduced to EUR
3,000 and the Claimant would receive 7 monthly instalments of EUR 3,000
each.
6.
Equally, the DRC judge took note that on 9 May 2009, the parties signed the
second agreement in accordance with which the Respondent acknowledged to
pay the Claimant the amount of EUR 6,600 on the same day and an
outstanding amount of EUR 12,000, payable in 4 equal installments of EUR
3,000 each on the 25th day of the months of June, July, August and September
2009. Furthermore, the DRC judge noted that said agreement stated that
“after this payment I [the Claimant] have no more demands from the Club for
2008/2009”.
7.
In addition, the DRC judge acknowledged that, in his claim to FIFA, the
Claimant, requested from the Respondent the payment of EUR 26,000 plus 4%
interest on said amount, amounting to a total of EUR 26,622.23, claiming the
difference between the salary of the contract and the first agreement of EUR
2,000 regarding the months of November 2008 until January 2009, alleging the
reduction of his salary agreed in the first agreement to be illegal and claiming
the payment of EUR 20,000, for alleged outstanding salaries the Respondent
allegedly failed to pay for the salaries for the months of February until May
2009 of EUR 5,000 each.
8.
Finally, the DRC judge took note that, for its part, the Respondent had
acknowledged having signed the second agreement with the Claimant and
admitted it did not yet pay the relevant amount of EUR 12,000. In
continuation, the DRC judge noted that the Respondent had rejected the
player’s allegation of the first agreement not being valid, while emphasizing
that the second agreement should be the only valid agreement to be taken
into consideration.
9.
On account of the aforementioned considerations, the DRC judge pointed out
that it was, first and foremost, crucial to closely examine the aforementioned
documents, i.e. the first and second agreements signed by both parties, and to
establish which document entitles the Claimant to receive any outstanding
amounts, if at all.
10.
In this respect, the DRC judge noted that with regard to the chronological
order of events in the present matter, the first agreement was signed on 25
November 2008, whereas the second agreement was signed on 9 May 2009.
4/7
11.
In view of the above, the DRC judge first of all acknowledged that the second
agreement states that “after this payment I have no more demands from the
Club for 2008/2009”. Furthermore, the DRC judge noted that said document
appears to bear the Respondent’s stamp and the signature of one of its
representatives as well as the signature of the Claimant. Consequently, the
DRC judge agreed that this document must be considered as a waiver duly
signed by the player with which he had also waived all previous claims against
the club, i.e. any demands that might have arisen out of the first agreement.
12.
The aforementioned considerations led the DRC judge to conclude that the
relevant agreement to be taken into account in the present matter is the
second agreement, since it was signed after the first agreement and with it
terminated all previous demands the Claimant might have had from the
Respondent.
13.
Furthermore, and for the sake of completeness, the DRC judge emphasized
that contrary to the player’s assertion, a contractual clause by means of which
the salary of a player is reduced cannot be seen as illegal as long as it has been
agreed upon by both parties to the contract. In other words, the amount of
salary payable to a player is to be considered as forming part of the
contractual freedom of parties to a contract and can be subject to
modifications during the course of the employment relationship under the
express condition that both parties agree to it, which appears to have been the
case in the present matter, the player having signed the first agreement.
14.
In this respect, the DRC judge pointed out that according to the second
agreement, the Claimant is entitled to receive EUR 12,000, payable in 4 equal
installments of EUR 3,000 each on the 25th day of the months of June, July,
August and September 2009.
15.
In this regard, the DRC judge established that the Respondent acknowledged
that in accordance with the second agreement it failed to remit the Claimant
the outstanding amount of EUR 12,000, payable in 4 equal installments of EUR
3,000 each for the months of June, July, August and September 2009.
16.
Consequently and taking into consideration all the above-mentioned, the DRC
judge decided to that the Respondent is liable to pay, in accordance with the
general legal principle of pacta sunt servanda, to the Claimant the outstanding
amount of EUR 12,000.
17.
In addition, taking into account the Claimant’s request of 4% interest, the DRC
judge decided that the Respondent must pay to the Claimant interest of 4%
5/7
p.a. on each of the outstanding monthly payments as of the day following the
day on which such payments had fallen due, i.e. on the 26th day of the months
of June, July, August and September 2009, as follows:
-
4% p.a. as of 26 June 2009 over the amount of EUR 3,000;
4% p.a. as of 26 July 2009 over the amount of EUR 3,000;
4% p.a. as of 26 August 2009 over the amount of EUR 3,000;
4% p.a. as of 26 September 2009 over the amount of EUR 3,000.
18.
In view of all the above, the DRC judge held that the claim of the Claimant is
partially accepted and concluded his deliberations by rejecting any further
claims lodged by the Claimant.
III.
Decision of the DRC judge
1.
The claim of the Claimant, J, is partially accepted.
2.
The Respondent, A FC, has to pay to the Claimant, J, within 30 days as from the
date of notification of this decision the amount of EUR 12,000 plus interest at 4%
p.a. until the date of effective payment as follows:
-
4% p.a. as of 26 June 2009 over the amount of EUR 3,000;
4% p.a. as of 26 July 2009 over the amount of EUR 3,000;
4% p.a. as of 26 August 2009 over the amount of EUR 3,000;
4% p.a. as of 26 September 2009 over the amount of EUR 3,000.
3.
Any further claims lodged by the Claimant, J, are rejected.
4.
If the aforementioned sum plus interst is not paid within the aforementioned
deadline, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
5.
The Claimant, J, is directed to inform the Respondent, A FC, immediately and
directly of the account number to which the remittance is to be made and to
notify the DRC judge of every payment received.
Note relating to the motivated decision (legal remedy):
According to art. 63 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,
6/7
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
Markus Kattner
Deputy Secretary General
7/7