Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 29 November 2013,
in the following composition:
Geoff Thompson (England), Chairman
Theodore Giannikos (Greece), member
Alejandro Marón (Argentina), member
Taku Nomiya (Japan), member
Mohamed S. Al-Saikhan (Saudi Arabia), member
Johan van Gaalen (South Africa), member
Carlos González Puche (Colombia), member
John Bramhall (England), member
Rinaldo Martorelli (Brazil), member
on the claim presented by the player,
Player A, from country G
as Claimant
against the club,
Club V, from country S
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 19 January 2012, the player from country G, Player A (hereinafter: player or
Claimant), and Club V, from country S (hereinafter: club or Respondent),
signed an employment contract valid as from the date of signature until 31
December 2013.
2.
On 3 December 2012, the player and the club signed a termination agreement,
by means of which the parties agreed to terminate the contract by mutual
consent. The termination agreement states that the club has to compensate
the player for the termination of the contract with the amount of EUR 77,415,
to be paid by no later than 15 December 2012. The termination agreement
further stipulates that in the event of non-compliance with the
aforementioned provision within the stated time limit, the club has to pay to
the player a compensation amounting to EUR 150,000, “i.e. the remuneration
due to the Player until the end of the contract signed between the parties on
19 January 2012, in addition to the amount in debt”.
3.
On 14 January 2013, the player lodged a claim before FIFA against the club
claiming the total amount of EUR 227,415 relating to the termination
agreement and interest of 5% p.a. “from the date of the instalment until full
payment”.
4.
The player stated that the club had not paid him the amount agreed upon in
the termination agreement.
5.
In spite of having been invited by FIFA to do so, the club has failed to respond
to the player’s claim.
II.
Considerations of the Dispute Resolution Chamber
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 matter
at stake. In this respect, it took note that the present matter was submitted to
FIFA on 14 January 2013. Consequently, the DRC concluded that the 2012
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 par. 2 and 3 of the
Procedural Rules).
Player A, from country G / Club V, from country S
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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 2012) 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 G and a country S
club.
3.
Furthermore, the Chamber 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, it confirmed that in accordance with art. 26 par. 1 and 2
of the Regulations on the Status and Transfer of Players (edition 2012) and
considering that the present claim was lodged in front of FIFA on 14 January
2013, the 2012 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 Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing
so, the Chamber started by acknowledging the above-mentioned facts of the
case as well as the documentation contained in the file.
5.
In this respect and first of all, the DRC acknowledged that following the
conclusion of an employment contract on 19 January 2012, the Claimant and
the Respondent had concluded a termination agreement dated 3 December
2012, by means of which they agreed that the Respondent would pay to the
Claimant, by no later than 15 December 2012, the amount of EUR 77,415 for
the termination of the contract. The DRC further acknowledged that according
to the termination agreement, the Respondent must pay to the Claimant an
additional amount of EUR 150,000 in the event of non-compliance with the
aforementioned provision.
6.
Subsequently, the DRC noted that the Claimant maintained that the
Respondent had not fulfilled its obligations as established in the termination
agreement, since it had not paid the Claimant the amount of EUR 77,415
within the stated time limit.
7.
Thus, based on the termination agreement, the Claimant requested to be paid
the amount of EUR 77,415 as well as the compensation amounting to EUR
150,000, plus interest at the rate of 5% p.a. on both amounts as “from the
date of the instalment until full payment”.
Player A, from country G / Club V, from country S
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8.
Furthermore, the DRC noted that the Respondent had been given the
opportunity to reply to the claim lodged by the Claimant, but that the
Respondent had failed to present its response in this respect. In this way, so
the DRC deemed, the Respondent renounced its right of defence and, thus,
accepted the allegations of the Claimant.
9.
As a consequence of the preceding consideration, the DRC established that in
accordance with art. 9 par. 3 of the Procedural Rules it shall take a decision
upon the basis of the documents on file.
10.
On account of the aforementioned considerations, the DRC established that
the Respondent had failed to pay to the Claimant the amount of EUR 77,415
by 15 December 2012, as agreed upon in the termination agreement. The
Chamber also established that as a consequence of the non-payment within
the stated deadline, the amount of EUR 150,000 had fallen due in accordance
with the termination agreement. Consequently, the DRC concluded that, in
accordance with the general legal principle of “pacta sunt servanda”, the
Respondent is liable to pay the Claimant the amount of EUR 227,415.
11.
In continuation and with regard to the Claimant's request for interest, the DRC
decided that the Claimant is entitled to receive interest at the rate of 5% p.a.
on the total amount of EUR 227,415 as from 17 December 2012. In this respect,
the DRC emphasized that the payment of EUR 150,000 which is stipulated in
the termination agreement, is to be regarded as a compensation for the
termination of the contract, and not as a penalty, since the amount
corresponds to the value of the employment contract until its original date of
expiry. Thus, the Chamber decided to award interest on said amount as well.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club V, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount EUR 227,415 plus 5% interest
p.a. as from 17 December 2012 until the date of effective payment.
3.
In the event that the amount plus interest due to the Claimant 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.
Player A, from country G / Club V, from country S
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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 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 Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl. CAS Directives
Player A, from country G / Club V, from country S
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