Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 15 November 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (The Netherlands ), member
Johan v an Gaalen (S outh Africa), member
Wouter Lam brecht (Belgium ), member
Pav el Piv ov arov (Rus s ia), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding a dispute
arisen between the parties
I.
Facts of the cas e
1.
On 28 July 2017, the player of Country B, Player A (hereinafter: the
Claimant), and the club of Country D, Club C (hereinafter: the
Respondent), signed a settlement agreement “with the purpose of
execution of the Decision of the Dispute Resolution Chamber of the
Football Federation of Country D […] dated 17.07.2013 […] hereinafter –
the DRC decision”.
2.
More specifically, said agreement concerned the “failure by the
[Respondent] to execute the DRC Decision”, according to which “the
[Respondent] is obliged to settle the debt before the [Claimant] in the
amount of 456 654,00 Euro […] on the basis of the exchange rate of the
National Bank of Country D as of the date of the decision, and a
compensation in the amount of 140 230,00 Euro […]”.
3.
According to art. 2 of the settlement agreement, “the Parties have
agreed to determine the order of execution of the DRC Decision on the
basis of compromise terms as set out in this Settlement Agreement”.
4.
Furthermore, according to art. 3 of the settlement agreement, “the
Parties have agreed that the overall amount of debt of the [Respondent]
before the [Claimant] […] shall be set in the amount of the equivalent of
300 000,00 Euro”.
5.
Moreover, according to art. 4 of the settlement agreement, the
Respondent undertook to pay the Claimant the above-mentioned sum in
24 instalments of different amounts (“the equivalent of” EUR 30,000 the
first instalment, “the equivalent of” EUR 10,000 the following 7 and “the
equivalent” of EUR 12,500 the remaining 16), falling due the 15th day of
each month as from August 2017 until July 2019.
6.
Art. 5 of the settlement agreement specified that the aforementioned
amounts would be paid in EUR, USD “or any other currency agreed by the
parties”.
7.
Art. 8 of the settlement agreement established that “in the event that
the [Respondent] delays the payment of the first payment, or any 2 (two)
consecutive payments set out in para 4 of this Settlement Agreement”:
a.
according to art. 8.1, “the [Respondent] shall pay to the [Claimant] as
per his demand a fine in the amount of 5 per cent of the amount of
the Debt that remains outstanding as of the moment of the receipt
Player A, Country B / Club C, Country D
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of the [Claimant]’s demand – in the event if the delay occurs in the
period from the date of execution of this Settlement Agreement till
28.02.201[8]”;
b. according to the same provision, the Respondent shall pay “a fine in
the amount of 10 per cent […] in the event the delay occurs in the
period from 01.03.2018 till 31.08.2018”;
c.
according to art. 8.2, “and/or (separately from payment of the fine in
the relevant amount)” the Claimant “shall have the right to
terminate this Settlement Agreement”. The same provision specified
that, as a consequence of the termination, “the [Respondent] shall be
obliged to pay the amounts specified by the DRC Decision reduced
for the amounts already paid under the present Settlement
Agreement […]”.
8.
By letter dated 12 March 2018, the Claimant informed the Respondent
that he had not received the total amount of EUR 30,000, corresponding
to the instalments falling due on 15 December 2017, 15 January and 15
February 2018. With the same correspondence, the Claimant put the
Respondent in default of payment of EUR 31,500 as per art. 8.1 of the
settlement agreement and reminded the Respondent of the possibility of
termination pursuant to art. 8.2 should the default persist within the
following 10 days.
9.
On 12 April 2018, the Claimant addressed the Respondent with a further
correspondence, this time putting the latter in default of payment of EUR
33,000, as the instalments falling due on 15 January, 15 February and 15
March 2018 were outstanding.
10.
By letter dated 25 April 2018, the Claimant unilaterally terminated the
settlement agreement pursuant to its art. 8.2 due to the fact that the
instalments falling due on 15 February, 15 March and 15 April 2018 were
outstanding, asking to be paid the total amount of EUR 516,884. The
Claimant informed the Respondent that said amount consisted in the
difference between EUR 596,884 as “the amounts specified by the DRC
Decision” and EUR 80,000 that the Respondent already paid under the
settlement agreement.
11.
On 2 May 2018, the Respondent replied to the Claimant acknowledging
that the latter had “acquired the right […] to terminate” the settlement
agreement and confirming their “resolute intention to return to the
schedule of payments in course of May – beginning of June 2018” and to
pay interest on the delayed payments. However, with the same
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correspondence, the Respondent disagreed on the amount claimed by
the Claimant, pointing out that, instead, its indebtedness towards him
was “approximately equal to” EUR 211,500.
12.
On 16 May 2018, the Claimant lodged a claim against the Respondent in
front of FIFA, requesting to be awarded the total amount EUR 516,884,
plus 5% interest p.a. as from 26 April 2018 until the date of effective
payment.
13.
The Claimant further requested that the Respondent be ordered to pay
“the legal costs and all other expenses of these proceedings”.
14.
More specifically, the Claimant argued that, in July 2013, the DRC of the
Football Federation of Country D had condemned the Respondent to pay
him the total amount of EUR 596,884. The Claimant further recalled that,
on 28 July 2017, the parties signed an agreement by means of which they
agreed to settle their financial relationship with a payment of 24
instalments totalling EUR 300,000 that the Respondent should have
performed following the schedule set out in art. 4 of the agreement (cf.
point 5 above).
15.
In this respect, the Claimant explained that, with significant delays
concerning the payment of each instalment and after he had sent various
default notices, the Respondent had paid the total amount of EUR
80,000. However, the Claimant maintained that the Respondent’s
continuous delays exhausted his good faith and left him with no other
choice than terminating the settlement agreement in accordance with its
art. 8.2.
16.
The Claimant added that the Respondent, through its correspondence
dated 2 May 2018, recognised his entitlement to terminate the
settlement agreement and consequently acknowledged its debt.
17.
In its reply, the Respondent acknowledged being in debt towards the
Claimant and recognised his right to terminate the settlement
agreement, hoping to settle the case before it could be decided by FIFA.
However, the Respondent pointed out that the DRC of the Football
Federation of Country D had condemned it to pay the player EUR
456,654.25 “according to the exchange rate of the National Bank of
Country D as of the day of this Decision passing” and compensation in
the amount of EUR 140,230.60. Consequently, according to the
Respondent, its indebtedness towards the Claimant consisted of
4,788,118.91 in the currency of Country D (i.e. the amount equivalent to
EUR 456,654.25 as per the Respondent’s calculation) and EUR 60,230.60
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(i.e. EUR 140,230.60 minus EUR 80,000 already paid under the settlement
agreement).
18.
In his replica, the Claimant reiterated his position, underlining that the
Respondent’s alleged financial distress should not allow it to “refrain
from complying with its payment obligations”. Concerning the amounts
at stake, the Claimant explained that “the literal interpretation” of the
agreement is “very clear and it is not necessary to go beyond” its text
and, thus, confirmed his initial financial requests. In this respect, the
Claimant argued that “any contrary interpretation” would mean to grant
the Respondent “an additional discount as prize for having once again
failed to comply with its long overdue payment obligations”.
19.
In its duplica, the Respondent asked FIFA a postponement of the decision
on the matter at hand in order to reach an amicable settlement with the
Claimant, which, however, it deemed to be an unlikely scenario.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to
as DRC or Chamber) analysed whether it was competent to deal with the
case at hand. In this respect, the Chamber took note that the present
matter was submitted to FIFA on 16 May 2018. Consequently, the DRC
concluded that the 2018 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 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 2018), the Dispute Resolution Chamber
would, in principle, be competent to deal with the matter at stake,
insofar as it would concern an employment-related dispute, between a
player of Country B and a club of Country D.
3.
Notwithstanding the above, the Chamber underlined that, as to its
competence to entertain the present claim, it should consider the
following facts which are at the basis of the specific litigation at hand.
4.
In particular, the DRC recalled that the present claim stems from the
Respondent’s alleged failure to comply with the obligations enshrined in
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a settlement agreement signed in July 2017, which – according to its
preamble – had the “purpose of execution of the Decision of the Dispute
Resolution Chamber of the Football Federation of Country D” of 2013.
5.
Moreover, the members of the Chamber acknowledged that the abovementioned agreement established the amount at which the parties
agreed to settle the Respondent’s pending debt and provided, inter alia,
that – in case the Respondent failed to observe the schedule of payments
outlined therein – the Claimant would have the right to terminate the
agreement and, as a consequence, the Respondent would be obliged to
pay the “amounts specified by the [N]DRC Decision reduced for the
amounts already paid”.
6.
In other words, the DRC recalled, a national Dispute Resolution Chamber
had already been called upon deciding on the financial consequences of
the Respondent’s stance in relation the original employment relationship
between the parties.
7.
More in particular, the Chamber pointed out that, according to the
parties’ submissions and related attachments, on 29 April 2013, the
Claimant lodged a claim against the Respondent before the DRC of the
Football Federation of Country D, requesting, inter alia, that the latter
decide upon the “non-fulfilment by Respondent of financial obligations
according to the contract and agreement about additional payments”.
8.
In this respect, the Chamber emphasised that, on 17 July 2013, said
national deciding body rendered its decision, condemning the
Respondent, inter alia, “to pay in favour of [the Claimant] indebtedness
in amount of 456 654 […] Euro 25 eurocents according to the exchange
rate of the National Bank of Country D as of the day of this Decision
passing […]” and “to pay in favour of [the Claimant] the compensation in
amount for pre-term termination of the contract in amount of 140 250
[…] Euro 60 eurocents”.
9.
Moreover, the members of the Chamber recalled that the decision
rendered by the DRC of the Football Federation of Country D on 17 July
2013 was final and binding.
10.
In light of the above, and considering the literal tenor of the settlement
agreement signed by the parties on 28 July 2017, it appeared to the
members of the Chamber that, de facto, the purpose of the present claim
was to execute a decision rendered by the DRC of the Football Federation
of Country D on the parties’ employment relationship.
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11.
With the aforementioned considerations in mind, the DRC wished to
recall the principle ‘electa una via non datur recursus ad alteram’ which
establishes that any party who has chosen a forum in order to seek
recourse cannot thereafter seek recourse in another. Equally, according
to the principle ‘venire contra factum proprium non valet’, a party may
not set himself in contradiction with his previous conduct.
12.
In view of the above, the members of the Chamber were of the
unanimous opinion that they were not in a position to entertain the
claim of the Claimant. Indeed, as was previously mentioned, the Claimant
sought recourse in front of the DRC of the Football Federation of Country
D in relation to his employment relationship with the Respondent,
thereby recognising the latter deciding body’s jurisdiction. In this respect,
the Chamber highlighted that, although the parties entered into a
subsequent settlement agreement, said document – as its content, in
particular the preamble, unequivocally pointed out – had clearly the
purpose of executing the findings of the decision of the DRC of the
Football Federation of Country D of 17 July 2013.
13.
Along those lines, the Chamber deemed it important to underline that
the practice to have a case heard by a decision-making body, with the
aim to get the most favourable judgment, known as “forum shopping”,
cannot be upheld by the Chamber. In other words, once a party has
chosen a competent decision-making body to adjudicate its claims in
relation to a specific employment relationship, said party is precluded to
seek recourse from the DRC. Indeed, if a party chooses to pursue the
defence of his rights at national level, the said party should proceed that
way.
14.
Taking into account all the foregoing considerations, the Chamber
decided that it is not competent to deal with the claim lodged by the
Claimant.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is inadmissible.
*****
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Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 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 (CAS)
Avenue de Beaumont 2
CH-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:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
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