Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 October 2015,
in the following composition:
Geoff Thompson (England), Chairman
Joaquim Evangelista (Portugal), member
Eirik Monsen (Norway), member
Theodore Giannikos (Greece), member
Taku Nomiya (Japan), member
on the claim presented by the player,
A, country B
represented by Mr xxxxx
as Claimant
against the club,
B, country S
represented by Mr xxxxxx
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 1 August 2013, the player from country B, A (hereinafter; the Claimant or the
player) and the club from country S, club B (hereinafter; the Respondent or the
club) entered into an employment contract (hereinafter; the contract) valid as of
the date of its signature until 31 May 2014.
2.
According to clause 18.a of the contract “the player will be paid a monthly salary
at the end of each month of an amount as per both parties agree in 18-D-2”.
3.
In this respect, clause 18.d of the contract reads inter alia as follows:
“The club to pay a sum of USD 700,000 a provider contract and pay as follows:
1. An amount of USD 250,000 upon signing the contract will be paid as follows:
-
USD 100,000 to be paid as cash after three weeks from signed this
contract
2. An amount of USD 350,000 to be divided by 10 months as monthly salaries. It
will be USD 35,000 per month start from 31/08/2013”.
4.
Moreover, art. 25 of the contract stipulated inter alia the following: “Should there
be any dispute between the parties regarding the present agreement, the parties
will attempt to settle such dispute in an amicable manner within 15 days of the
notification of the dispute. In the assumption the parties have not reached an
amicable agreement within the aforesaid time limit, the dispute shall be settled in
first instance by the FIFA competent judicial body….”.
5.
On 13 May 2015, the Claimant lodged a claim against the Respondent in front of
FIFA requesting the following amounts:
a. USD 100,000 as the outstanding part of the sign-on fee;
b. USD 105,000 as outstanding salaries of March, April and May 2014;
c. 5% interest on all the amounts as of the due dates.
6.
In particular, the Claimant explained that he was entitled to USD 350,000 as a
sign-on fee and USD 350,000 as salaries, i.e. to a total amount of USD 700,000. In
this respect, the Claimant argued that the Respondent failed to pay him the
claimed amounts.
Player A, country B / Club B, country S
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7.
The Claimant further asserted, while enclosing the respective letter, that on 20
March 2015, he put the Respondent in default of the alleged outstanding
payments, however to no avail.
8.
In its reply to the claim, the Respondent firstly stressed that the sign-on fee was
only for USD 250,000 therefore, the Claimant’s request of USD 100,000 as the
outstanding part of the sign-on fee must be rejected.
9.
Furthermore, the Respondent argued that the Claimant never tried to reach to an
amicable settlement with it despite being obliged to do so in accordance with art.
25 of the contract. Therefore, it alleged that “the claim of the player has no legal
grounds as being premature”. In this regard, the Respondent denied having
received the Claimant’s letter of 20 March 2015.
10.
In his replica, the Claimant reiterated that he was entitled to a total remuneration
of USD 700,000 in view of the clear wording of clause 18.d. Moreover, the
Claimant enclosed the Respondent’s initial proposal dated 8 July 2013 which reads
inter alia as follows: “[the Respondent] is glad that an agreement was reached
with your good self (…) and the agreement includes: The total amount of USD
700,000 net to be paid in a contract valid for the season 2013/2014”.
11.
Additionally, the Claimant affirmed that he sent the letter of 20 March 2015 to
the club via e-mail. Moreover, the Claimant enclosed an e-mail exchange and a
Whatsapp conversation with Mr T, allegedly an official of the Respondent
whereby, according to the Claimant, it can be noted that the Respondent was
“willing to negotiate”. As a consequence, the Claimant rejected not having
attempt to try to amicably settle the dispute with the Respondent.
12.
In its duplica, the Respondent argued that the proposal presented by the Claimant
cannot be taken into account since it was replaced by the actual employment
contract. In this respect, the Respondent underlined once more that the contract
clearly provides that the sign-on fee is of USD 250,000 only.
13.
Finally, the Respondent stressed that Mr T is neither a representative nor an
official of the club and therefore emphasised once again that the Claimant did
not fulfill the formalities as per art. 25 of the employment contract.
14.
In accordance with the information contained in the Transfer Matching System
(TMS), the Claimant was entitled to a total fixed remuneration of USD 700,000.
Player A, country B / Club B, country S
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
DRC or the Chamber) analysed whether it was competent to deal with the matter
at hand. In this respect, the Chamber took note that the present matter was
submitted to FIFA on 13 May 2015. Consequently, 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 2015), 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 from country B and a club from country
S.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, the Chamber confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer
of Players (edition 2015), and considering that the claim was lodged in front of
FIFA on 13 May 2015, the 2015 edition of the aforementioned regulations
(hereinafter; the 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.
First of all, the Chamber acknowledged that the parties concluded an
employment contract valid as of 1 August 2013 until 31 May 2014.
6.
Subsequently, the members of the Chamber focused on the claim of the Claimant
who argues that the Respondent undertook to pay him the total amount of USD
700,000 comprised of USD 350,000 as a sign-on fee and USD 350,000 as salaries. In
this respect, the Chamber took note that according to the Claimant, the
Respondent failed to pay him the total amount of USD 205,000; USD 100,000
corresponding to the outstanding sign-on fee and USD 105,000 as per his salaries
of March, April and May 2014.
Player A, country B / Club B, country S
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7.
Conversely, the Chamber took note of the position of the Respondent which
raised two main arguments in its defense, namely that: i) the player’s claim should
be rejected in its entirety as the player failed to comply with the formalities
stipulated in art. 25 of the contract and ii) in the alternative, the player should not
be entitled to the amount requested as outstanding sign-on fee since the latter
amounted to USD 250,000 only.
8.
In view of the above-mentioned considerations, the DRC considered that it first
would need to pronounce itself on whether the Claimant’s alleged failure to
comply with the formalities stipulated in art. 25 of the contract prevented him
from lodging a claim against the Respondent in front of the DRC. Subsequently,
and if necessary, the Chamber would need to establish the actual amount to
which the Claimant was entitled as a sign-on fee in accordance with the contract.
9.
After establishing the above, and in relation to the first issue, the Chamber, while
analyzing the content of art. 25, acknowledged that it is desirable, as a general
rule, that the parties involved in a certain dispute try to amicably settle it before
requesting the intervention of FIFA’s dispute resolution bodies.
10.
Notwithstanding the above and referring to the matter at hand, the Chamber was
of the opinion that the position of the parties in the present matter are so far
apart that an amicable settlement did not seem feasible. Therefore, the members
of the Chamber concluded that even if the Claimant would have attempted to
solve the present matter amicably, which is affirmed by the Claimant and, from
the documentation on file, can be debatable, the involvement of a dispute
resolution body in the matter at hand appeared inevitable. As a result, the
Chamber decided to reject the first argument of the Respondent.
11.
Turning to the specific financial requests of the Claimant, the members of the
Chamber first considered important to emphasise that the Respondent did not
deny at any moment not having paid the player’s salaries of March, April and May
2014.
12.
On account of the foregoing, the members of the Chamber concurred that the
Respondent must fulfill its obligations as per the contract in accordance with the
general legal principle of pacta sunt servanda. Consequently, the Chamber
decided that the Respondent is liable to pay to the Claimant the amount of USD
105,000 consisting of his salaries of March, April and May 2014.
13.
After establishing the above, the Chamber proceeded to analyse the conflicting
positions of the parties regarding the actual amount payable to the Claimant as
sign-on fee. In this respect, the members of the Chamber observed that whilst the
Player A, country B / Club B, country S
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Claimant argues that he was entitled to USD 350,000, the Respondent stressed
that the correct amount was USD 250,000.
14.
With the above-mentioned considerations in mind and after a thorough anlaysis
of the documentation on file, the members of the Chamber came to the
unanimous conclusion that the Claimant was entitled to a sign-on fee of USD
350,000. The Chamber is comforted in its conclusion in view of i) the wording of
the contract whereby it is established that the Claimant was entitled to a total
amount of USD 700,000 and ii) the proposal presented by the Claimant.
15.
Furthermore, the members of the Chamber referred to art. 6, par. 3 of Annexe 3
of the Regulations in accordance with which, within the scope of proceedings
pertaining to the application of the Regulations, FIFA may use any documentation
or evidence generated by or contained in TMS or obtained by FIFA TMS GmbH on
the basis of their investigation powers in order to properly asses the issue at stake.
16.
In this respect, the members of the Chamber highlighted that according to the
information entered into TMS by the Respondent itself upon engaging the player,
the Claimant was entitled to a total fixed remuneration of USD 700,000. As such,
it is evident that at the moment the transfer occurred the parties had agreed
upon a total fixed remuneration of USD 700,000.
17.
On account of all the previous considerations, the members of the Chamber
unanimously decided that the Claimant is entitled to USD 100,000 as the
outstanding part of the sign-on fee.
18.
In addition, taking into consideration the Claimant’s claim and the Chamber’s
long-standing jurisprudence, the members of the DRC decided to award interest
on all the due amounts at the rate of 5% p.a. as of the due dates of each amount.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is accepted.
2.
The Respondent, B, is ordered to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of USD 205,000 plus 5%
interest p.a. until the date of effective payment as follows:
a. 5 % p.a. on the amount of USD 100,000 as of 23 August 2013;
b. 5 % p.a. on the amount of USD 35,000 as of 1 April 2014;
c. 5 % p.a. on the amount of USD 35,000 as of 1 May 2014;
d. 5 % p.a. on the amount of USD 35,000 as of 1 June 2014.
Player A, country B / Club B, country S
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3.
In the event that the amount plus interest due to the Claimant in accordance with
the above-mentioned number 2. 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.
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 motivated decision (legal remedy):
According to art. 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 Dispute Resolution Chamber:
Markus Kattner
Acting Secretary General
Encl. CAS directives
Player A, country B / Club B, country S
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