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 an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 30 December 2015, the Player of Country B, Player A (hereinafter: the Claimant)
and the Club of Country D, Club C (hereinafter: the Respondent), concluded an
employment contract (hereinafter: the contract), valid from 1 January 2016 until 31
May 2018.
2.
On 25 April 2017, the Claimant and the Respondent signed a document titled
“Settlement Agreement” (hereinafter: the settlement agreement).
3.
Clause 1 of the settlement agreement stipulated, inter alia, the following:
“The club shall pay irrevocably to the Player $ 1,130,000 (i.e. one million one
hundred thirty thousand USD) NET as compensation for breach of contract of
employment and interests for the final settlement of the above-mentioned dispute
(FIFA DRC decision). This payment of compensation shall be wire transferred by the
Club to the Player which ventilation as follows:
-$ 530,000 (i.e. five hundred thirty thousand USD) NET at last on the day of the
signature of the Settlement Agreement;
-$ 600,000 (i.e. six hundred thousand USD) NET at last on 21 July 2017. […]
[…] If the club doesn’t pay one of the instalments within the prescribed above
mentioned deadlines, for some reason that it is and without prior formal notice
from the player, the club is indebted without delay of the total sum due on basis of
the FIFA DRC decision (i.e. $ 1,330,000 NET increased by an interest at 5% per
annum from 12 June 2016 until the date of effective payment) and with a
supplementary fix penalty amounting to EUR 30,000 (i.e. thirty thousand EUR)”.
4.
Clause 2 of the settlement agreement further reads as follows:
“By virtue of this Settlement Agreement, the parties declare that all financial
relations between them with regard to the final and definitive FIFA DRC decision
dated on 13th October 2016, are finally and completely resolved, subject to the
terms of this Settlement Agreement being fully and duly complied with by the
club, as set out in clause 1 above”.
5.
By means of a correspondence dated 13 May 2017, the Claimant put the
Respondent in default of payment of USD 530,000, corresponding to the first
instalment due under the settlement agreement. In this regard, the Claimant
granted the Respondent a deadline of three days by which to pay him the specified
amount, failing which he would claim, in accordance with clause 1 of the
settlement agreement and FIFA’s decision passed on 13 October 2016, the total
amount of USD 1,330,000, plus interest. Moreover, the Claimant underlined that he
would also be entitled to claim “a supplementary fix penalty amounting to EUR
30,000” as specified in clause 1 of the settlement agreement.
6.
By means of a correspondence dated 19 May 2017, the Claimant informed the
Respondent that he “makes application of article 1, in fine, of the Settlement
Agreement” since no payment has been made by the Respondent and put the latter
in default of payment of EUR 30,000, corresponding to the penalty clause included
Player Player A, Country B / Club Club C, Country D
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in the settlement agreement. In this regard, the Claimant granted the Respondent a
deadline of 15 days in order to remedy the default.
7.
On 9 June 2017, the Claimant put the Respondent in default of the amount of EUR
30,000, setting a 10 days’ time limit in order to remedy the default and considered
it to be “an ultimate warning”.
8.
On 20 June 2017, the Claimant lodged a claim before FIFA requesting that the
Respondent pay him the amount of EUR 30,000, corresponding to the penalty
clause, which was included in clause 1 of the settlement agreement.
9.
In his claim, the Claimant underlined that the Respondent had not responded to the
two formal notices of 19 May 2017 and 9 June 2017 and stated that since the
Respondent failed to pay the first instalment within the relevant period of time as
stipulated in the settlement agreement, i.e. “on the date of signature of the
settlement agreement”, he was entitled to claim the penalty clause according to
clause 1 of the settlement agreement and in compliance with the legal principle of
“pacta sunt servanda”.
10.
Despite having been invited by FIFA to provide its comments on the present matter,
the Respondent did not answer to the Claimant’s claim.
II.
Cons iderations of the Dis pute Res olution Cham ber
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
stake. In this respect, the DRC took note that the present matter was submitted to
FIFA on 20 June 2017. Consequently, the DRC concluded that the 2017 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 June 2018) the DRC is competent to deal with the matter at stake,
which concerns an employment–related dispute with an international dimension
between a Player of Country B and a Club of Country D.
3.
Furthermore, the DRC 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, the DRC confirmed that in accordance with art. 26 par. 1 and par. 2 of said
Regulations (2016 and 2018 editions) and considering that the present claim was
lodged in front of FIFA on 20 June 2017, the 2016 edition of the Regulations on the
Status and Transfer of Players (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
Player Player A, Country B / Club Club C, Country D
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4.
The competence of the DRC and the applicable regulations having been
established, the members of the Chamber entered into the substance of the matter.
In this respect, 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.
In this respect, the DRC acknowledged that, following the conclusion of an
employment contract on 30 December 2015, the Claimant and the Respondent
signed a document titled “Settlement Agreement” on 25 April 2017, by means of
which they regulated inter alia financial obligations of the Respondent towards the
Claimant and which provided for a specific clause to be applied in case the
Respondent failed to remit the agreed amount to the Claimant within the relevant
deadlines.
6.
More specifically, the members of the Chamber observed that, by means of said
“Settlement Agreement”, the Respondent undertook to pay the Claimant the
amount of USD 1,130,000 by means of two instalments of USD 530,000 and USD
600,000, falling due, respectively, “on the day of the signature of the Settlement
Agreement” and on 21 July 2017.
7.
Equally, the Chamber noted that clause 1 of the “Settlement Agreement”
established that “[…] If the club doesn’t pay one of the instalments within the
prescribed above mentioned deadlines, for some reason that it is and without prior
formal notice from the player, the club is indebted without delay of the total sum
due on basis of the FIFA DRC decision (i.e. $ 1,330,000 NET increased by an interest
at 5% per annum from 12 June 2016 until the date of effective payment) and with
a supplementary fix penalty amounting to EUR 30,000 (i.e. thirty thousand EUR)”.
8.
In continuation, the members of the Chamber noted that, according to the
Claimant, the Respondent had failed to pay the first instalment due under the
“Settlement Agreement” within the relevant deadline. The DRC further noted that
the Claimant put the Respondent in default of payment of the aforementioned
amount on 13 May 2017.
9.
Moreover, the DRC noted that the Claimant, by means of a correspondence dated
19 May 2017, informed the Respondent that the penalty clause provided in the
“Settlement Agreement” had been triggered and put the latter in default of
payment of EUR 30,000, corresponding to said penalty clause. In this respect, the
DRC deemed worthwhile to point out that the Claimant lodged his claim with the
sole aim of redeeming the penalty envisaged in the “Settlement Agreement”.
10.
Furthermore, the Chamber took note that the Respondent, for its part, failed to
present its response to the claim of the Claimant, despite having been invited to do
so. In this way, the Chamber deemed, the Respondent renounced its right to
defence and accepted the allegations of the Claimant.
11.
Moreover, and as a consequence of the aforementioned consideration, the
Chamber established that in accordance with art. 9 par. 3 of the Procedural Rules it
shall take a decision upon the basis of the documents already on file.
Player Player A, Country B / Club Club C, Country D
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12.
Having said that, the members of the Chamber firstly underlined that it remained
uncontested that the first instalment of USD 530,000, which fell due “on the date of
signature of the settlement agreement”, i.e. on 25 April 2017, had not been paid by
the Respondent within the prescribed deadline. Consequently, the DRC agreed with
the Claimant’s conclusion that the penalty clause envisaged therein had been
triggered.
13.
However, after having established the foregoing, the Chamber deemed necessary
to focus its attention on the content of the penalty clause.
14.
In this respect, the DRC referred to its constant jurisprudence, in accordance with
which penalty clauses may be freely entered into by the parties and may be
considered acceptable, in the event that the pertinent written clause meets certain
criteria, such as proportionality and reasonableness. In this respect, the Chamber
highlighted that in order to determine as to whether a penalty clause is to be
considered acceptable, the specific circumstances of the relevant case brought
before it shall also be taken into consideration.
15.
In the specific case at hand, the members of the Chamber deemed that the penalty
clause of EUR 30,000, which the parties contractually agreed upon in the context of
terminating the employment relation, is both proportionate and reasonable in the
case at hand. Consequently, the Chamber decided that said contractual penalty fee
is valid and applicable in the present matter.
16.
On account of the above considerations as well as the specificities of the matter at
hand, the DRC decided that the Respondent is liable to pay a penalty in the amount
of EUR 30,000 to the Claimant.
III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club C, has to pay to the Claimant the amount of EUR 30,000,
w ithin 30 day s as from the date of notification of this decision.
3.
In the event that the amount due to the Claimant in accordance with the
abovementioned number 2. 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 limit and the present matter shall be submitted, upon request, to FIFA’s
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 Player A, Country B / Club Club C, Country D
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*****
Note relating to the m otiv ated decision (legal remedy):
According to article 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
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl.: CAS directives
Player Player A, Country B / Club Club C, Country D
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