Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 6 November 2014,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player B, from country F
as Claimant
against the club,
Club P, from country G
as Respondent
regarding an employment-related contractual dispute
arisen between the parties
I.
Facts of the case
1.
On 14 January 2010, Player B, from country F (hereinafter: the Claimant), and Club P, from
country G (hereinafter: the Respondent), concluded an employment contract (hereinafter:
the contract), valid from the date of signature until 30 June 2013.
2.
According to clause 4.1 of the contract, the Claimant was entitled to receive inter alia a
monthly salary in the amount of EUR 850 gross as well as the amount of EUR 302,671 net
payable in various instalments as from 28 February 2010 until 30 June 2013.
3.
On 28 August 2010, the parties concluded an “Agreement” (hereinafter: the termination
agreement), by means of which they agreed that the Claimant would be entitled to
receive the amount of EUR 80,000 net in four instalments as follows:
a) EUR 20,000 payable on 30 August 2010;
b) EUR 20,000 payable on 30 January 2011;
c) EUR 20,000 payable on 30 July 2011;
d) EUR 20,000 payable on 30 January 2012.
Equally, the termination agreement stipulated that “for these amounts the [Claimant]
shall receive from [the Respondent] four (4) cheques, with corresponding amounts and
dates”.
4.
On 10 April 2012, the Claimant submitted a claim against the Respondent in front of FIFA,
requesting the payment of the last two instalments of the termination agreement
totalling EUR 40,000 and the imposition of a “penalty”.
5.
In this regard, the Claimant explained that he contacted the Respondent on various
occasions in order to demand the last two outstanding instalments of the termination
agreement since the cheques for the 3rd and 4th instalment could not be cashed. As a
consequence, the Claimant was allegedly asked to travel to country G in order to receive
new cheques. However, in order to settle the matter swiftly, the Claimant’s lawyer
contacted the Respondent.
6.
In response to the Claimant’s letters, the Respondent confirmed still owing him the 3rd
and 4th instalment of the termination agreement and, on multiple occasions, asked for
more time due to the fact that the board of directors of the Respondent had to be
“authorized by the relevant Ministry of Development in country G”. Consequently, the
Claimant accepted the Respondent´s suggestion to delay the payment on 3 occasions.
Finally, however, the Claimant decided to contact FIFA since the Respondent continuously
failed to pay the due amounts. In this respect, the Respondent accepted the Claimant’s
decision to take legal actions and lodge a claim against it in front of FIFA.
7.
In its response to the claim, the Respondent confirmed the outstanding payments of the
last two instalments of the termination agreement and showed its willingness to pay the
relevant amounts “according to some payment plan that would be both acceptable by
the [Claimant] and feasible for the [Respondent]”. However, it pointed out that it cannot
go forward with the payment unless the Claimant returns the cheques for the 3rd and 4th
instalment dated 30 July 2011 and 30 January 2012 respectively, with a due amount of
EUR 20,000 each. In this regard, it also emphasized that the “bank cheques are by Law a
method of payment, the third and fourth instalments of the termination agreement are
considered paid and thus, in case the said cheques were not duly paid or were bounced,
the [Claimant] was obliged to bring the case before the country G Civil Courts”.
Player B, from country F / Club P, from country G
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8.
In his reaction, the Claimant pointed out that the Respondent confirmed owing him the
total amount of EUR 40,000 and stated that it is not his responsibility to travel to country
G in order to return the cheques for the last two instalments. On the contrary, it would be
the Respondent’s duty to make sure it gets back the cheques since it was the
Respondent´s fault to hand him two non-cashable cheques. Consequently, the Claimant
stated that the cheques are ready to be picked up at the legal representative’s office.
Equally, he pointed out that he is willing to send the cheques by courier-service, however,
only if the Respondent would be responsible to cover the risks and costs of such transport.
9.
In a letter dated 22 January 2013, the Respondent informed the Claimant directly that it
agrees on the transmission of the cheques by courier-service and that it would cover the
costs and undertake the relevant risk.
10.
On 28 January 2013, the Claimant allegedly sent the two cheques to the Respondent via
DHL service.
11.
On 14 March 2014, the Claimant informed FIFA that the Respondent has still not paid the
amount due and, therefore, requested the submission of the matter.
12.
In its final comments, the Respondent stated that it “does not deny the existence of the
debt towards the [Claimant] and will try to satisfy the [Claimant’s] request for payment
when and to the extent possible. On the other hand, the FIFA DRC shall only pass a
decision on the present matter, if, after examining whether it has jurisdiction on the
present matter or not, it considers itself competent to decide on the present dispute”.
II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: the DRC judge or
the judge) analysed whether he was competent to deal with the matter at stake. In this
respect, the judge referred to art. 21 par. 1 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules). The present matter was submitted to FIFA on 10 April 2012. Therefore,
the DRC judge concluded that the edition 2008 of the Procedural Rules was 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. 1 and 2 of the Procedural Rules and
confirmed that, in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit.
b) of the Regulations on the Status and Transfer of Players (edition 2014), he is competent
to decide on the present litigation, which concerns an employment-related dispute with
an international dimension, between a country F player and a country G club.
3.
Furthermore, the 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 (editions 2009, 2010, 2012 and 2014), and considering that
the present claim was lodged on 10 April 2012, the 2010 edition of said 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 judge entered into the substance of the matter. In doing so, he started to
acknowledge the facts of the case as well as the documents contained in the file.
However, the DRC judge emphasised that in the following considerations he will refer
Player B, from country F / Club P, from country G
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only to the facts, arguments and documentary evidence which he considered pertinent
for the assessment of the matter at hand.
5.
In this respect, the DRC judge acknowledged that it was undisputed by the parties that,
on 14 January 2010, they had signed an employment contract valid from the date of
signature until 30 June 2013.
6.
In continuation, the DRC judge took note that it is also undisputed by the parties involved
that, on 28 August 2010, they concluded a termination agreement, by means of which
they agreed that the Claimant would be entitled to receive from the Respondent the
amount of EUR 80,000 net in four instalments as follows; a) EUR 20,000 payable on 30
August 2010, b) EUR 20,000 payable on 30 January 2011, c) EUR 20,000 payable on 30 July
2011 and d) EUR 20,000 payable on 30 January 2012.
7.
The DRC judge further noted that, on the one hand, the Claimant claims that the last two
cheques, corresponding to the 3rd and 4th outstanding instalments of the termination
agreement, could not be cashed. Therefore, the Claimant asked to be rewarded with the
payment of the last two outstanding instalments of the termination agreement in the
total amount of EUR 40,000. Equally, the judge took due note that the Claimant also
requested the imposition of a “penalty” on the Respondent.
8.
Subsequently, the judge noted that, on the other hand, the Respondent confirmed owing
to the Claimant the last two instalments of the termination agreement totalling
EUR 40,000. In this context, the DRC judge further observed that the Respondent was
willing to pay the relevant amounts “according to some payment plan that would be
both acceptable by the [Claimant] and feasible for the [Respondent]”, however, it pointed
out that it could not go forward with the payment unless the Claimant returns the
cheques for the 3rd and 4th instalment.
9.
Finally, the DRC judge noted that the Claimant stated having sent back the relevant
cheques on 28 January 2013 via DHL service.
10.
In view of the foregoing, and taking into consideration the Respondent’s thorough
acknowledgement of debt as claimed by the Claimant, the DRC judge decided that, in
accordance with the general legal principle of pacta sunt servanda, the Respondent is
liable to pay to the Claimant outstanding remuneration in the total amount of
EUR 40,000 and that the claim of the Claimant is accepted.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player B, is accepted.
2.
The Respondent, Club P, is ordered to pay to the Claimant outstanding remuneration in the
amount of EUR 40,000 within 30 days as from the date of notification of this decision.
3.
In the event that the amount due to the Claimant in accordance with the above-mentioned
number 2. is not paid within the above-mentioned time limit, an interest rate of 5% p.a.
will apply on said amount as of expiry of the above-mentioned time limit and the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its
consideration and a formal decision.
Player B, from country F / Club P, from country G
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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 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
Jérôme Valcke
Secretary General
Encl. CAS directives
Player B, from country F / Club P, from country G
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