Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed in Zurich, Switzerland, on 3 October 2018,
by Philippe Diallo (France), DRC judge,
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 9 July 2016, the player of Country B, Player A (hereinafter: Claimant), and the
club of Country D, Club C (hereinafter: Respondent) signed an employment contract
valid as from the date of signature until 20 May 2017 (hereinafter: contract).
2.
In accordance with art. 4 of the contract, the Claimant was entitled to receive the
following remuneration from the Respondent:
“1- Gross amount of one season 5.766.750.000 in the currency of Country D (USD
165000) that will be payable as below:
1-1- 40% of amount, the amount of 2.306.700.000 in the currency of Country D
will be paid to the player after legal deductions and after signing the
contract.
1-2- 30% of amount, the amount of 1.730.025.000 in the currency of Country D
will be paid in semi season to the player;
1-3- 30% of amount, the amount of 1.730.025.000 in the currency of Country D
will be paid at the end of the season after confirmation of the supervisor will
be paid to the player.”
3.
Moreover, art. 11 of the contract establishes, inter alia, in
- par. 1: ”the club also has the right in case of any violation by the (player) that
causes lack of technical quality, according the supervisor, board of directors’
approval and internal regulations determine the penalty maximum up to %30 and
the player has no right for any complaint for this article.”
- par. 8: ”the player is committed to pay all legal deductions of the contract
(insurance and tax…) that will be deducted in the payment”;
- par. 9: ”the player is obliged to complete tax payers’ form to jurisdiction economic
affairs and finance and receiving the tax clearance”
4.
On 22 May 2017, the Claimant and the Respondent signed a memorandum of
understanding (hereinafter: memorandum) to “cancel” the employment
relationship, according to which the amount of 1,000,000,000 in the currency of
Country D would be paid to the Claimant with a cheque dated 27 May 2017 after
signing the memorandum. The memorandum further refers to article 11 par. 8 of
the contract, according to which the Claimant is obliged to pay tax and legal
deductions. Furthermore, the memorandum states that the Claimant “after signing
this memorandum of understanding and receiving the aforementioned amount
declares that has received all the claims from [the Respondent] and hereafter has no
claim from [the Respondent] and has no right for domestic and international
protest.”
Player A, Country B / Club C, Country D
Page 2 of 6
5.
On 1 February 2018, the Claimant lodged a claim against the Respondent before
FIFA requesting to be awarded the amount of USD 46,000. Alternatively, the
Claimant requested to be awarded the amount of USD 37,700, corresponding to USD
46,000 minus tax deductions.
6.
According to the Claimant, at the time the parties signed the memorandum, i.e. on
22 May 2017, the Respondent was in default of payment of the amount of USD
66,000 corresponding to part of the second instalment as well as the full third
instalment in accordance with art. 4 of the contract.
7.
The Claimant acknowledged having received 1,000,000,000 in the currency of
Country D agreed in the memorandum of understanding, in the net amount of USD
20,000.
8.
The Claimant held that with the memorandum the Respondent only partially settled
its debt and that the memorandum does not serve as a full settlement of the
contractual obligations.
9.
According to the Claimant, the Respondent was not willing to pay the amount of
USD 46,000 due to an alleged fine imposed for “the poor placement of the club in
the championship of Country D.”
10.
The Claimant underlined that, at the end of the contract, he was obliged to stay in
Country D with his family since the Respondent kept all their passports and that he
signed the memorandum under duress.
11.
The Respondent, for its part, rejected the Claimant’s claim.
12.
In this respect, the Respondent held that it fulfilled all its obligations towards the
Claimant and that the Claimant was responsible to pay taxes according to art. 11
paras 8 and 9 of the contract.
13.
Furthermore, the Respondent stressed that, according to the memorandum, the
Claimant had “no claim from Club C” and “no right to claim to domestic and
international authorities.”
14.
The Respondent denied that it withheld the Claimant’s passport and that the
Claimant was compelled to sign the memorandum. It further held that it provided
the Claimant and his family with flight tickets to return to Country B.
15.
Despite being invited to do so, the Claimant did not comment on the Respondent’s
submission.
Player A, Country B / Club C, Country D
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II.
Cons iderations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
matter at hand. In this respect, he took note that the present matter was submitted
to FIFA on 1 February 2018. Consequently, the 2018 edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art.
21 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
2018) he 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 judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, he confirmed that in accordance with
art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players
(edition 2018), and considering that the present claim was lodged on 1 February
2018, the 2018 edition of the Regulations on the Status and Transfer of Players
(hereinafter: 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. In this respect,
the DRC judge started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation on file. However, the DRC judge emphasised
that in the following considerations he will refer only to the facts, arguments and
documentary evidence, which he considered pertinent for the assessment of the
matter at hand.
5.
First of all, the DRC judge acknowledged that, on 9 July 2016, the Claimant and the
Respondent had concluded an employment contract valid as from its date of
signature until 20 May 2017.
6.
The DRC judge further observed that, on 22 May 2017, the Claimant and the
Respondent signed a memorandum of understanding, according to which, inter alia,
the parties agreed that the Claimant will receive from the Respondent the amount
of 1,000,000,000 in the currency of Country D, with reference to art. 11 par. 8 of the
contract, pursuant to which the Claimant was obliged to pay tax and legal
deductions, by cheque after signing the memorandum.
7.
In addition, the DRC judge took due note that said memorandum stated that the
Claimant “after signing this memorandum of understanding and receiving the
aforementioned amount declares that has received all the claims from [the
Player A, Country B / Club C, Country D
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Respondent] and hereafter has no claim from [the Respondent] and has no right for
domestic and international protest.”
8.
In continuation, the DRC judge noted that in his claim against the Respondent, the
Claimant seeks payment of the amount of USD 46,000 on the basis of art. 4 of the
employment contract, corresponding to part of the second instalment payable at
mid-season as well as the entire third instalment to be paid at the end of the season.
9.
Furthermore, the DRC judge took due note that the Claimant acknowledged having
received the amount agreed in the memorandum of understanding, i.e.
1,000,000,000 in the currency of Country D, in the net amount of USD 20,000.
10.
Subsequently, the DRC judge took into account that the Respondent, for its part,
rejected the claim of the Claimant. In this regard, the Respondent invoked the clause
inserted in the memorandum of understanding, by means of which the Claimant,
according to the Respondent, acknowledged that the Respondent had fulfilled all of
its financial obligations towards him.
11.
Moreover, in its argumentation, the Respondent mentioned that in accordance with
the memorandum, the Claimant had “no claim from Club C” and “no right to claim
to domestic and international authorities.”
12.
Having said that, first and foremost, the DRC judge wished to stress that it has
remained undisputed that the Claimant duly signed the memorandum and received
from the Respondent the amount of 1,000,000,000 in the currency of Country D
agreed by and between the parties within the memorandum of understanding.
13.
As regards the Claimant’s allegation that he signed the memorandum of
understanding under duress, the DRC judge referred to art. 12 par. 3 of the
Procedural Rules, in accordance with which any party claiming a right on the basis of
an alleged fact shall carry the burden of proof, and concluded that the Claimant had
not presented documentation corroborating his allegation that he was forced to
sign the memorandum of understanding. Consequently, the DRC judge determined
that the Claimant’s respective argument could not be upheld.
14.
Having established the above, the DRC judge underlined that in accordance with
aforementioned clause inserted in the memorandum (cf. points I./4. and II./7. above)
the Claimant unambiguously acknowledged that, after signature of the
memorandum and receipt of the Respondent’s payment of the amount of 1,000,000
in the currency of Country D, the Respondent had fulfilled all of its financial
obligations towards him.
15.
Taking into account the preceding considerations, the DRC judge decided to reject
the claim of the Claimant in its entirety.
Player A, Country B / Club C, Country D
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III.
Decis ion of the DRC judge
The claim of the Claimant, Player A, is rejected.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to article 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-cas.org
For the DRC judge:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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