Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 26 November 2015,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
Player A, country B,
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 5 July 2012, the player from country B, Player A (hereinafter: the Claimant)
and the club from country D, Club C (hereinafter: the Respondent), concluded
an employment contract (hereinafter: the contract), valid as of 6 July 2012
until 30 June 2013.
2.
Pursuant to the contract, the Claimant was entitled to receive a monthly gross
salary of 1,740,000 payable “up to the 10th day following the actual month”.
3.
In addition, the annex of the contract provides for the following “additional
fees”:
“- 1.680.000 in advance at sign the contract
- 100.000 for Match played (championship) in line up, 50.000 as substitute
- 35.000 for each goal signed (championship)
(…)
- 4 Flight tickets to go country B and back
(…)”
4.
On 20 December 2012, the Claimant sent an invoice to the Respondent
requesting the latter to pay EUR 20,000 “in order to terminate in an amicable
way his employment contract”.
5.
On 7 January 2013, the Claimant lodged a claim against the Respondent
requesting FIFA’s DRC to:
“- States that employment agreement between the [Claimant] and the
[Respondent] is terminated with just cause;
- Stipulates a compensation in favour of the [Claimant] because of the failure
of paying the salaries without just cause;
- Condemn the [Respondent] to pay to the [Claimant] all his outstanding
salaries plus the additional fees as provided for in the Contract signed between
the parties (until today: EUR 20,000 as outstanding salaries + EUR 5,600 as
outstanding additional fees = EUR 25,600)”.
6.
In his claim, the Claimant explains that since the beginning of the contract, the
Respondent only paid him EUR 10,000, i.e. EUR 2,500 on 30 August 2012, EUR
2,500 on 6 September 2012 and EUR 5,000 on 5 October 2012.
7.
The Claimant further asserts that on fourteen games he was included in the
starting line-up and that, on two occasions, he came in as a substitute. The
Claimant also adds that he scored two goals in championship games.
8.
On 6 February 2013, the parties agreed to terminate the contract in exchange
for the payment to the Claimant of EUR 20,000, corresponding to three
monthly salaries as well as bonuses, in three instalments as follows:
- EUR 9,000 upon signature of the termination agreement;
Player A, country B / Club C, country D
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- EUR 6,000 on 15 March 2013;
- EUR 5,000 on 15 April 2013.
9.
On 26 April 2013, the Claimant informed FIFA that he had only received an
amount of EUR 8,975 and therefore amended his claim, requesting to be
awarded with the amount of EUR 16,625, plus 5% interest p.a. “as from the
date in which these payments should be made”, composed of:
- EUR 11,025 as outstanding amount from the termination agreement;
- EUR 5,600 “as outstanding additional fees”.
10.
On 29 July 2014, the parties concluded a settlement agreement (hereinafter:
the settlement agreement) which reads as follows:
“1. Parties agreed, that Employer had terminated the employment relationship
created with Employee on mutual consent.
2. Parties agree that [the Respondent] owed to [the Claimant] net amount of
salaries, bonuses and interest/accessory:
Principal Obligation : 11 000 EUR.
Interests/Accessory : 2 000 EUR
3. The Parties agree, that [the Respondent] pays the following net amount in
three instalments:
5 000 EUR until 15th August 2014.
4 000 EUR until 30th September 2014.
4 000 EUR until 15th November 2014.
4. Should the aforementioned payments not be made within the agreed
deadlines, [the Respondent] will pay to [the Claimant] an additional fine
correspondent to 10% of the contract, i.e. 1.300 EUR.”
11.
On 20 October 2014, the Claimant informed FIFA that he had only received a
payment of EUR 4,961.12 on 19 August 2014 from the settlement agreement.
In view of the above, and in particular considering clause 4 of the settlement
agreement, the Claimant considers that an amount of EUR 12,963.19 remains
outstanding. Notwithstanding the above, and stressing on the Respondent’s
bad faith, the Claimant requests to be awarded with EUR 26,900 plus 5%
interest p.a. “as from the date in which these payments should be made”.
12.
On 25 March 2015, the Respondent acknowledged, via a correspondence sent
to FIFA, a debt of EUR 9,300, corresponding to EUR 8,000 as principal
obligation and EUR 1,300 as additional fine stipulated in the settlement
agreement.
13.
In his final comments, the Claimant reiterates his previous argumentation but
only claims the amounts he claimed in his first petition, this is, EUR 25,600 plus
5% interest p.a. “as from the date in which these payments should be made”.
II.
Considerations of the DRC judge
Player A, country B / Club C, country D
3
1.
First, the DRC judge analysed whether he was competent to deal with the case
at hand. In this respect, the DRC judge took note that the present matter was
submitted to FIFA on 7 January 2013. Consequently, the 2012 edition of the
Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the 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 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and 2 in conjunction
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players
(edition 2015), he is competent to decide on the present litigation, which
concerns an employment-related dispute with an international dimension
between a player from country B and a club from country D.
3.
Moreover, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the
Status and Transfer of Players, the DRC judge confirmed that he may
adjudicate in the present dispute which value does not exceed CHF 100,000.
4.
Furthermore, the DRC judge analysed which edition of the 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 (edition
2015), and considering that the present matter was submitted to FIFA on 7
January 2013, the 2012 edition of said Regulations (hereinafter: the
Regulations) is applicable to the present matter as to the substance.
5.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In doing
so, he started by acknowledging the above mentioned facts of the case as well
as the documentation contained in the file. However, the DRC judge
emphasized that in the following considerations he will refer only to facts,
arguments and documentary evidence which he considered pertinent for the
assessment of the matter at hand.
6.
In this respect and first of all, the DRC judge acknowledged that, on 5 July
2012, the Claimant and the Respondent concluded an employment contract
valid as of 6 July 2012 until 30 June 2013.
7.
Furthermore, the DRC judge observed that on 6 February 2013, the parties
decided to terminate their contractual relationship in exchange for the
payment to the Claimant of EUR 20,000.
8.
Equally, the DRC judge took note that, on 31 May 2014, the parties signed a
settlement agreement which reads as follows:
Player A, country B / Club C, country D
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“1. Parties agreed, that Employer had terminated the employment relationship
created with Employee on mutual consent.
2. Parties agree that [the Respondent] owed to [the Claimant] net amount of
salaries, bonuses and interest/accessory:
Principal Obligation : 11 000 EUR.
Interests/Accessory : 2 000 EUR
3. The Parties agree, that [the Respondent] pays the following net amount in
three instalments:
5 000 EUR until 15th August 2014.
4 000 EUR until 30th September 2014.
4 000 EUR until 15th November 2014.
4. Should the aforementioned payments not be made within the agreed
deadlines, [the Respondent] will pay to [the Claimant] an additional fine
correspondent to 10% of the contract, i.e. 1.300 EUR.”
9.
In continuation, the DRC judge observed that it is uncontested between the
parties that the Respondent did not comply with the settlement agreement
and only made a payment on 19 August 2014. In this respect, the DRC noted
that the Claimant acknowledges receipt of a payment of EUR 4,961.12 whereas
the Respondent considers having paid an amount of EUR 5,000; however, the
Respondent did not submit any evidence in support of its assertion. Therefore,
and after referring to the content of art. 12 par. 3 of the Procedural Rules, the
DRC judge held that the Respondent had failed to satisfactorily carry the
burden proof and concluded that an amount of EUR 4,961.12 had been paid
on 19 August 2014.
10.
On account of the aforementioned consideration, the DRC judge established
that the Respondent had failed to pay to the Claimant the total amount of
EUR 8,038.88 from the settlement agreement and that, consequently, by virtue
of the legal principle of pacta sunt servanda, the Respondent is liable to pay
the Claimant the amount of EUR 8,038.88.
11.
In addition, taking into consideration the Claimant’s claim as well as the
content of clause 3 of the settlement agreement, the DRC judge decided that
the Respondent had to pay default interest at a rate of 5% as follows:
a.
b.
c.
12.
5% p.a. as of 16 August 2014 on the amount of EUR 38.88;
5% p.a. as of 1 October 2014 on the amount of EUR 4,000;
5 % p.a. as of 16 November 2014 on the amount of EUR 4,000.
In continuation, the DRC judge reverted to the content of the abovementioned clause 4 of the settlement agreement signed on 31 May 2014 and
outlined that the Respondent failed to pay to the Claimant, within the
stipulated deadline, the amounts as agreed upon in the settlement agreement.
Consequently, the DRC judge concluded that, in accordance with the general
legal principle of pacta sunt servanda, the Respondent is liable to pay the
Player A, country B / Club C, country D
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Claimant the amount of EUR 1,300 which was contractually agreed as a
penalty fee in case of any delay in payment by the Respondent.
13.
Subsequently, the DRC judge analysed the Claimant’s additional request to
compensation based on the Respondent’s bad faith. In this regard, the DRC
judge deemed it appropriate to point out that the request for said
compensation presented by the Claimant had no legal or regulatory basis and
pointed out that no corroborating evidence had been submitted that
demonstrated or quantified the damage suffered.
14.
The DRC judge concluded his deliberations in the present matter by
establishing that any further claims filed by the Claimant are rejected.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of EUR 8,038.88 plus 5%
interest p.a. until the date of effective payment as follows:
d.
e.
f.
5% p.a. as of 16 August 2014 on the amount of EUR 38.88;
5% p.a. as of 1 October 2014 on the amount of EUR 4,000;
5 % p.a. as of 16 November 2014 on the amount of EUR 4,000.
3.
In the the event that the amount due to the Claimant in accordance with the
above-mentioned point 2 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 Respondent is ordered to pay to the Claimant a penalty fee in the amount
of EUR 1,300, within 30 days as from the date of notification of this decision.
5.
In the event that the amount due to the Claimant in accordance with the
above-mentioned point 4 is not paid by the Respondent within the stated time
limit, interest at the rate of 5% p.a. will fall due as of expiry of the
aforementioned time limits and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
6.
Any further claim lodged by the Claimant is rejected.
7.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances are to be made and to notify the
DRC judge of every payment received.
Player A, country B / Club C, 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 DRC judge:
Markus Kattner
Acting Secretary General
Encl. CAS Directives
Player A, country B / Club C, country D
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