Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 6 November 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Carlos González Puche (Colombia), member
Theo van Seggelen (Netherlands), member
Theodore Giannikos (Greece), member
Mohamed Al-Saikhan (Saudi Arabia), member
on the claim presented by the player,
S, from country B
as Claimant
against the club,
Club G, from country T
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 17 August 2012, the player S from country B (hereinafter: the Claimant or
player), and the Club G from country T (hereinafter: the Respondent or club),
entered into an employment contract valid as from August 2012 until 31 May
2016. In accordance with the employment contract, the Claimant was entitled to
the amount of EUR 810,000 for the 2012/2013 season.
2.
On 4 December 2012, the parties concluded a termination agreement by means of
which the following was agreed upon:
“Clause One:
1. On the date 31.12.2012. Club obliges to release Player, either to return to Club
X from country R or to be transferred or loaned to any other club in country T
or abroad. Club will not ask any transfer fee or any other kind of compensation
demand. Club obliges not to put any fines or penalties to Player due to their
Labour Contract or any other basis.
2. The Player obliges not to claim Club to Football Federation of country T or FIFA
unless Club breaches any point of this agreement. Player also obliges to fulfil all
his obligations from his labour Contract with Club until the date of 31.12.2012.
(…)
Clause Three
1. Until today, parties agree that Club has paid to Player total Sum of 160.000,00
Eur (one hundred and sixty thousand).
2. Debt to player will be paid as regulated in Clause Four of this Agreement.
Clause Four
1. Until the date of 31.12.2012. Club will play 3 official matches in country T Super
League (Club Y, Club Z and Club N)
2. Depending the points club will win in Champions in above mentioned 3
matches, Player will be paid as follows:
- 0-3 points – club obliges to pay player sum of 200.000,00 Eur net.
- 4-6 points – club obliges to pay player sum of 240.000,00 Eur net.
- 7 points – club obliges to pay player sum of 300.000,00 Eur net.
- 9 points – club obliges to pay player sum of 340.000,00 Eur net.
3. The above-mentioned amount Club obliges to pay Player player as follows:
- Until 15 January 2013 Club obliges to pay Player sum of 100.000,00 Eur Net
- Until 15 April 2013 Club obliges to pay Player sum of 50.000,00 Eur Net
- Until 15 July 2013 Club obliges to pay Player sum that will be left from total
sum (defined in clause four, point 2) after first two rates are paid.
4. In case of Clubs delay of payment more than 15 days, club obliges additionally
to pay fine of 5% per month on the amount owed to Player at the moment.
In this case Player can report Club to Football Federation of country T and
FIFA. (…)”
Player S, from country B / Club G, from country T
2
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On 19 April 2013, and amended on 29 April 2013, the Claimant lodged a claim in
front of FIFA against the Respondent for EUR 150,000 relating to the first two
instalments of the agreement and added that he is entitled to EUR 90,000 more if
the Respondent would not pay such sum prior to 15 July 2013. Equally, the
Claimant claimed 5% interest per month as from the 16th day following the due
dates.
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In particular, the Claimant stated that the Respondent gained 4 points in the
matches against Club Y, Club Z and Club N, and, thus, the due amount would be
EUR 240,000. In this respect, the Claimant submitted documentation which
established that:
i)
ii)
iii)
the game against Club Y was played on 8 December 2012 (lost 0-2),
the game against Club Z was played on 15 December 2012 (drew 0-0), and
the game against Club N was played on 23 December 2012 (won 2-1).
5.
The Claimant stressed that there was no condition whatsoever stipulated in the
agreement for the payment of the above-mentioned amount, in particular, no
condition that he should have participated in any of the matches. Equally, the
Claimant underlined that the reason for which the parties had concluded the
agreement was that the Respondent had a considerable debt towards the
Claimant and that, to settle this matter, they had agreed upon the unconditional
payment of at least EUR 200,000.
6.
In its reply, the Respondent indicated that the payment of the remuneration
stipulated in the agreement was subject to the condition that the Claimant
fulfilled his obligations towards the Respondent until 31 December 2012. In this
respect, the Respondent stressed that the Claimant left the Respondent without
notification and without obtaining permission from the club; he did not
participate in any training session and left to country T while he was still under
contract. To corroborate its position, the Respondent submitted statements of club
officials who confirmed that the Claimant did not participate in the training
sessions held on 19, 20 and 21 December 2012.
7.
As a result, the Respondent argued that the Claimant breached the agreement and
is not entitled to any remuneration.
8.
In his replica, the Claimant held that regardless of the number of points won
against Club Y, Club Z and Club N, he would be entitled to EUR 200,000. In
addition, on the sole condition that the Respondent would gain between 4 and 6
points in the league games against said country T club, the amount would increase
to EUR 240,000. The Claimant reiterated that there was no condition stipulated in
Player S, from country B / Club G, from country T
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the contract that made the payment subject to him fulfilling his obligations until
31 December 2012.
9.
As a result, the Claimant argued that it was the parties’ clear intention to exclude
any possibility that the Respondent would adjust the amount due to the Claimant.
The Claimant’s alleged absence between 19 and 21 December 2012 is therefore
irrelevant.
10.
Nevertheless, the Claimant disputed the Respondent’s statement that he was
absent from work between 19 and 21 December 2012 and indicated that the
statements of the club officials cannot be taken into account since these persons
are closely linked to the Respondent.
11.
Finally, even if it was to be proven that the he was absent between 19 and 21
December 2012, the Claimant holds that the Respondent did not suffer any
damages since the Respondent did not play any games on those dates.
12.
In its duplica, the Respondent held that it is clear from the Claimant’s statements
that it is not disputed that the latter did not fulfil his obligation towards the
Respondent. Also, it is clear from the documentary evidence provided that the
Claimant did not partake in the training sessions held between 19 and 21
December 2012. Therefore, the Respondent stressed that it is undisputed that the
Claimant did not fulfil his obligations until 31 December 2012 and the claim should
be rejected.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
Chamber or DRC) analysed whether it was competent to deal with the case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 19 April 2013. Consequently, 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. article 21 of
the 2012 and 2014 edition 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 2014), 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 and a club.
Player S, from country B / Club G, from country T
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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 2014) and
considering that the present claim was lodged in front of FIFA on 19 April 2013,
the 2012 edition of said regulations (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, 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.
In this respect, the Chamber duly observed that the main dispute between the
parties was that the Claimant held that he was entitled to the minimal and
unconditional amount of EUR 200,000 in accordance with the termination
agreement, whereas the Respondent held that the payment of any amount
stipulated in the termination agreement was conditional upon the Claimant
fulfilling his contractual obligations towards the Respondent until 31 December
2012, which, according to the Respondent, did not happen. In this context, the
Respondent submitted statements of its Technical Director, its General Manager
and the “1st and 2nd Captain” of the club to corroborate that the Claimant was
absent from the club on 19, 20 and 21 December 2012 and thus did not fulfil his
obligations towards the club until 31 December 2012.
6.
After having analysed in detail the relevant agreement as well as the
documentation presented by the Respondent, the Chamber came to the
unanimous conclusion that the Claimant is entitled to receive the amount of EUR
240,000 from the Respondent. In particular, the Chamber underlined that the
documentation submitted by the Respondent to support its position that the
Claimant was absent on 19, 20 and 21 December 2012 merely consisted of
statements of its employees. The Chamber considered that such documentation
cannot be considered impartial and, as a result, decided not to give any weight to
the relevant statements. In view of the foregoing, the Chamber held that there
had been no objective and conclusive evidence submitted by the Respondent from
which it could be established that the Claimant was not present at the club on 19,
20 and 21 December 2012.
7.
What is more, and for the sake of good order, the Chamber wished to emphasise
that even if it could be established that the Claimant was absent from the club on
19, 20 and 21 December 2012, it did not agree that the absence from the club for a
Player S, from country B / Club G, from country T
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period of merely 3 days would render the entire termination agreement invalid. In
particular, the DRC stressed that the termination agreement had been concluded
following a substantial debt of the Respondent towards the Claimant in relation to
their employment relationship and further underlined that the termination
agreement did not condition the payment of the various amounts stipulated
therein to the participation of the Claimant in the relevant matches. Equally, the
Chamber pointed out that the Claimant was not even absent on the dates on
which the relevant matches were played. As a consequence of the foregoing, the
Chamber held that even if it was to be considered that the Claimant was absent
from the club on 19, 20 and 21 December 2012, the Respondent would be liable to
pay the Claimant the amounts stipulated in the termination agreement.
8.
In conclusion, and considering that the Claimant had been able to prove that the
Respondent obtained a total of 4 points in the matches it played against Club Y,
Club Z and Club N, the Chamber determined that the Respondent is liable to pay
the Claimant the amount of EUR 240,000 in accordance with “Clause Four” of the
termination agreement.
9.
Finally, and whilst emphasising that an interest rate of 5% per month is considered
to be excessive, the Chamber decided that the Respondent must pay to the
Claimant interest of 5% per annum as from the due dates of the relevant amounts.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, player S, is accepted.
2.
The Respondent, Club G, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount of
EUR 240,000, plus 5% interest on said amount until the date of effective payment
as follows:
a.
b.
c.
3.
5% p.a. as of 16 January 2013 on the amount of EUR 100,000;
5% p.a. as of 16 April 2013 on the amount of EUR 50,000;
5% p.a. as of 16 July 2013 on the amount of EUR 90,000.
In the event that the aforementioned amount plus interest 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 S, from country B / Club G, from country T
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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 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:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player S, from country B / Club G, from country T
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