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
Theo van Seggelen (Netherlands), member
Carlos González Puche (Colombia), member
Theodore Giannikos (Greece), member
Mohamed Al-Saikhan (Saudi Arabia), member
on the claim presented by the player,
Player A, from country B
as Claimant
against the club,
Club C (formerly known as Club CC), country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 5 October 2011, the Player A from country B (hereinafter: player or Claimant)
and the club from country D, Club C (formerly known as Club CC) (hereinafter:
club or Respondent) signed an employment contract valid as from 4 October 2011
until 30 June 2012.
2.
In accordance with the employment contract, the player was entitled to receive
inter alia 5 monthly payments of USD 20,000 each, as from 28 February 2012 until
30 June 2012.
3.
On 12 and 25 September 2012, the player put the club in default of payment of
the amount of USD 100,000.
4.
These default notices having remained unanswered, on 1 October 2012, the
player lodged a claim against the club in front of FIFA asking that the club be
ordered to pay the amount of USD 100,000, representing 5 instalments of USD
20,000 each, which fell due as from February until June 2012, plus 5% interest p.a.
as from the date of the first default notice, i.e. 12 September 2012.
5.
The club failed to reply to the claim prior to the closure of the investigation into
this matter.
6.
Four months after the closure of the investigation, the club asked to be provided
with a copy of the claim.
7.
Thereafter, the club rejected the player’s claim asserting that the player had
signed a written declaration, dated 30 January 2012, stating that he had received
all his financial dues and that he cleared the club from any financial obligations in
accordance with the employment contract.
8.
The club further asked that the player be obliged to pay USD 10,000 to the club
for the expenses it incurred in connection with his false allegations and that the
player be held liable for any procedural costs.
9.
The player, for his part, denied having signed the document presented by the club
in support of its position. In this respect, he highlights inter alia that the
document does not bear any letterhead.
10.
He further pointed out that, should it be considered a valid document, said
document cannot be considered a mutual agreement to terminate the
Player A, from country B / Club C, from country D
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employment contract and he emphasised that he would never have agreed to
terminate his contract on 30 January 2012, at the end of registration periods,
without alternative employment and without any financial benefit. In addition,
should the parties have wished to terminate the contract, according to the player,
other wording would have been used in such context.
11.
In spite of having been requested by FIFA to present the original of the
aforementioned declaration in accordance with FIFA’s standard procedure, the
club has failed to do so.
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
hand. In this respect, it took note that the present matter was submitted to FIFA
on 1 October 2012. Consequently, the Rules governing the procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 par.
1 and par. 2 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 from country B and an club from
country D.
3.
Furthermore, the Chamber analysed which regulations 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 2014),
and considering that the present claim was lodged on 1 October 2012, the 2010
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, the Chamber entered into the substance of the matter. In this respect,
Player A, from country B / Club C, from country D
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the Chamber started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation submitted by the parties. 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.
The members of the Chamber acknowledged that the parties had concluded an
employment contract valid as from 4 October 2011 until 30 June 2012, in
accordance with which the Respondent undertook to pay the total amount of
USD 100,000 to the Claimant in five equal instalments of USD 20,000 as from
February 2012 until June 2012.
6.
In continuation, the Chamber reviewed the claim of the Claimant, who alleges
that the Respondent had failed to pay the full amount of USD 100,000 in spite of
the default notices he sent to the club. Therefore, the Claimant asks that the
Respondent be ordered to pay the amount of USD 100,000 plus 5% interest p.a. as
from the date of the first default notice, i.e. 12 September 2012.
7.
The members of the Chamber then turned their attention to Respondent, who
presented its reply to the claim, along with documentation it intended to rely on,
only four months after the closure of the investigation into the present matter
only. The Respondent having failed to reply within the investigation-phase, the
Chamber agreed that the Respondent’s response to the claim could not be taken
into consideration and that a decision shall be passed on the basis of the
allegations and documentation presented by the Claimant in his statement of
claim. In this context, the Chamber referred to art. 9 par. 3 of the Procedural
Rules, which stipulates, inter alia, that if no statement or reply is received from
the opposing party before the time limit expires, a decision shall be taken upon
the basis of the documents already on file.
8.
Having said this, the Chamber took into account that the Claimant has duly
substantiated his claim by presenting the relevant employment contract signed by
and between the parties. Furthermore, in light of the preceding consideration,
the Chamber concluded that the Respondent failed to provide justification for
non-payment of the claimed amount of USD 100,000. Consequently, the Chamber
decided that the Respondent is liable to pay the amount of USD 100,000 to the
Claimant.
9.
In this context, the members of the Chamber took note that in accordance with
an instruction dated 26 August 2013 in the Transfer Matching System (TMS), the
Claimant was de-registered by the country D Football Association on 30 January
Player A, from country B / Club C, from country D
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2012 and that he was registered with a club from country E in August 2013.
Consequently, the Chamber considered that the pertinent employment contract
had been prematurely terminated.
10.
The Chamber further took into consideration that there is no indication on file
that the relevant employment contract was prematurely terminated by mutual
agreement by and between the parties. Consequently, the Chamber agreed that a
unilateral termination of contract lies at the basis of the premature termination
of the employment contract between the parties.
11.
On the basis of all of the above considerations, the members of the Chamber
decided that the Respondent must pay the amount of USD 100,000 to the
Claimant as compensation for the unilateral and premature termination of the
employment contract without just cause.
12.
Furthermore, taking into account the request of the Claimant, the Chamber
decided to award the Claimant interest at the rate of 5% p.a. on the amount of
USD 100,000 as of 12 September 2012 until the date of effective payment.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club C, has to pay to the Claimant the amount of USD 100,000
within 30 days as from the date of notification of this decision, plus interest at the
rate of 5% p.a. as from 12 September 2012 until the date of effective payment.
3.
In the event that the amount 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.
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.
Player A, from country B / Club C, from country D
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*****
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 B / Club C, from country D
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