Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 2 October 2012,
by Theo van Seggelen (Netherlands), DRC judge
on the claim presented by the player,
Player S, from country G
as Claimant
against the club
Club M, from country C
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 3 August 2007, Player S, from country G (hereinafter: the Claimant) and
Club M, from country C (hereinafter: the Respondent) concluded an
employment contract valid as from 5 August 2007 until 31 May 2009 as well as
a supplementary agreement, the latter bearing no specific starting and ending
dates.
2.
On 31 March 2010, the Claimant and the Respondent concluded an agreement
(hereinafter: the agreement), by means of which the Respondent
acknowledged that it owed the Claimant the amount of EUR 42,809 and that
it, consequently, would pay the Claimant the amount of EUR 30,000, as
follows:
-
EUR 15,000 on 31 May 2010;
EUR 15,000 payable in 5 monthly installments of EUR 3,000 each, the first
one falling due on 1 September 2010.
3.
The agreement further stipulated that should the EUR 30,000 be paid on time,
then the whole amount of EUR 42,809 shall be deemed to have been paid. On
the contrary, if the EUR 30,000 would not be paid on time, the entire amount
of EUR 42,809 became immediately payable and due.
4.
On 28 July 2010, the Claimant lodged a claim against the Respondent in front
of FIFA, claiming the amount of EUR 42,809 as well as damages and costs from
the Respondent, whilst indicating that the Respondent had failed to pay the
Claimant any amount whatsoever.
5.
On 25 November 2010, the Respondent replied to the claim lodged against it
and rejected the claim of the Claimant arguing that, at the moment of signing
the agreement, the Claimant had assured the Respondent that he had paid all
his debts to the Departments of Social Insurances and Income Tax. The
Respondent in particular stated that “the fact presented to us on that specific
date [31 March 2010] were not real because the player untruly assured us that
he had settled his debts to the Departments of Social Insurances and Income
Tax and he did not reveal to us that he had signed a new employment contract
with the country G second division team Club E”.
6.
The Respondent further added that the Claimant had terminated his contract
with the Respondent in July 2008 and that the agreement was only signed as
the Respondent needed to meet the “UEFA criteria”.
Player S, from country G / Club M, from country C
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7.
On account of the above, the Respondent only agreed to pay an amount of
EUR 8,507 to the Claimant.
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, the DRC judge took note that the present
matter was submitted to FIFA on 28 July 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 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and 2 lit. i) in
combination 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
matter, which concerns an employment-related dispute with an international
dimension between a country G player and a country C 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 confirmed that in accordance with art. 26 par. 1 and
2 of the Regulations on the Status and Transfer of Players (editions 2009 and
2010) and considering that the present claim was lodged in front of FIFA on 28
July 2010, 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 and first of all, the DRC judge acknowledged that, on 3 August
2007, the Claimant and the Respondent had concluded an employment
contract valid as from 5 August 2007 until 31 May 2009 as well as a
supplementary agreement, the latter bearing no specific starting and ending
dates.
6.
Equally, the DRC judge took note that, on 31 March 2010, the parties had
concluded an agreement by means of which the Respondent had recognized
Player S, from country G / Club M, from country C
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that it owed the amount of EUR 42,809 to the Claimant, and, subsequently,
agreed upon the following:
“Further the Club with the present agreement states that with it undertakes
the obligation to pay to the player the amount of €30000 EURO as follows:
15,000 euros on the 31st May 2010 with 30 days grace and 5 equal monthly
instalments of € 3.000 EURO each starting from 01/09/2010 and with 15 grace
days. In the case where the Club pays to the football player the above amount
of €30.000 EURO, as agreed within the time frame specified above, then the
whole amount of €42.809 EURO will be deemed as paid. Otherwise, if the Club
does not pay that amount within the specified date, then the entire
outstanding amount of €42.809 EURO becomes immediately payable and
due.“
7.
In addition, the DRC judge observed that the Claimant is claiming the amount
of EUR 42,809 from the Respondent, thereby asserting that the Respondent
had not complied with the above-mentioned agreement and had not paid him
any amount whatsoever.
8.
Finally, the DRC judge took note that, for its part, the Respondent had
acknowledged having signed the agreement with the Claimant and admitted
it did not yet pay the relevant amount to the latter. However, the Respondent
justified the non-payment by arguing that, at the time of concluding the
agreement, the Claimant had not told the truth to the Respondent and added
that the agreement was only signed as it needed to meet the “UEFA criteria”.
In this respect, the Respondent stated that “the fact presented to us on that
specific date [31 March 2010] were not real because the player untruly assured
us that he had settled his debts to the Departments of Social Insurances and
Income Tax and he did not reveal to us that he had signed a new employment
contract with the country G second division team Club E. The DRC judge
further noted that, as a result, the Respondent was of the opinion that only
the amount of EUR 8,507 was due to the Claimant.
9.
In this context, the DRC judge was eager to emphasise that the parties, after
the expiry of the duration of the original contract, signed an agreement on 31
March 2010 by means of which the Respondent recognized that it still owed an
amount to the Claimant and subsequently agreed upon the manner of
payment of such amount. In this respect, the DRC judge stressed that should
the Claimant not have fully fulfilled his obligations towards the Respondent or
the relevant authorities in country C in connection with the employment
contract, the Respondent should not have agreed to sign an agreement by
means of which it recognized that it owed the Claimant the amount of EUR
42,809. In other words, the DRC judge deemed that the Respondent could not,
Player S, from country G / Club M, from country C
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after having concluded the agreement, contest the contents of said agreement
on the basis of alleged breaches of the employment contract which occurred
prior to the date of signing the agreement and which, as such, bear no
relation with the agreement dated 31 March 2010.
10.
As to the arguments raised by the Respondent that it had only signed the
agreement to meet the “UEFA criteria” and that the player had signed a new
employment contract with a country G club, the DRC judge did not see any
reason why this would release the Respondent from its obligations under the
agreement. In fact, the Respondent itself did not even indicate why these
actions would be relevant in the present matter.
11.
On account of all the above, the DRC judge found that there was no basis to
deduct any amount from the amount of EUR 42,809 and, bearing in mind that
it was undisputed that no payment whatsoever had been made in accordance
with the agreement, as well as the legal principle of pacta sunt servanda, the
DRC judge decided that the Respondent is liable to pay the amount of EUR
42,809 to the Claimant.
12.
The DRC judge concluded his deliberations in the present matter by rejecting
any further claim of the Claimant.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player S, is partially accepted.
2.
The Respondent, Club M, has to pay to the Claimant the amount of EUR
42,809, within 30 days as from the date of notification of this decision.
3.
In the event that the aforementioned sum is not paid by the Respondent
within the stated time limit, 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.
4.
Any further claim lodged by the Claimant is rejected.
Player S, from country G / Club M, from country C
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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
DRC judge of every payment received.
Note relating to the motivated decision (legal remedy):
According to article 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 DRC judge:
Markus Kattner
Deputy Secretary General
Encl. CAS Directives
Player S, from country G / Club M, from country C
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