Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 November 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Michele Colucci (Italy), member
Carlos Soto (Chile), member
Ivan Gazidis (England), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player,
X,
as Claimant
against the club,
Y,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 15 January 2007, the S player, X (hereinafter: Claimant or player), and the C
club, Y (hereinafter: Respondent or club), signed an employment contract valid
from the date of signature until 30 December 2007.
2.
On 17 January 2007, the Claimant and Respondent signed two additional
agreements to the employment contract valid until 30 December 2007.
3.
On 5 May 2007, the player was injured, whereafter the parties signed a
settlement agreement (hereinafter: settlement agreement) in October 2007.
4.
According to art. 2 of the settlement agreement, the player shall receive the
total amount of EUR 52’000, payable in five instalments, as follows:
- EUR 12’000 due within three days after signing the settlement agreement,
- EUR 10’000 due until 30 November 2007,
- EUR 10’000 due until 31 December 2007,
- EUR 10’000 due until 31 January 2008,
- EUR 10’000 due until 29 February 2008.
5.
In addition, art. 3 of the settlement agreement provides that the payments
shall be paid out in cheques in the name of the Claimant and his bank account
in the Bank of C.
6.
Furthermore, art. 4 of the settlement agreement states that: “If the Club fails
to make any of the above mentioned payments within the time-limits, the Club
is immediately obliged to pay out the Player the total claim of ninentytwo
thousand five-hundred and eighty-three (92’583) EUR. The Club is furthermore
obliged to pay out costs for his lawyer L”
7.
On 25 January 2008, the parties signed an amendment to the settlement
agreement (hereinafter: amendment) in which they agreed that the remaining
amount of EUR 30’000 to be paid to the Claimant will be transferred to the
Claimant’s bank account in S, as follows:
- EUR 10’000 due within two days after signing the amendment,
- EUR 10’00 due until 31 January 2008,
- EUR 10’000 due until 28 February 2008.
8.
Along with each of the aforementioned instalments, the amendment makes
reference to the cheques and their numbers that were originally issued.
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9.
Furthermore and according to art. 5 of the amendment, “The player will return
the unused cheques to the club”.
10. In art. 2 of the amendment there is also a clause in handwriting, according to
which “Reasonable grace period is granted to the Club regarding the payments
since transfers from C to S will take some days (The Club’s bank has no direct
connection to any of S banks). Cheques stated above will become null and void
following each payment.”
11. On 10 February 2009, the player contacted FIFA claiming that he received,
although delayed, the four instalments in the total amount of EUR 42’000, but
that the club has failed to pay the last instalment in the amount of EUR 10’000,
which was due until 29 February 2008 in accordance with the settlement
agreement.
12. As a result, the Claimant requests to be awarded payment of the amount of
EUR 92’583 according to art. 4 of the settlement agreement, as the Respondent
did not fulfil its obligations according to the settlement agreement.
13. If the settlement agreement would be interpreted to the effect that he is
entitled to EUR 50’583 (EUR 92’583 minus the EUR 42’000 already remitted),
the Claimant asks to be awarded the payment of the amount of EUR 50’583.
14. In addition, the Claimant stated that if art. 4 of the settlement agreement
should not be considered applicable, he claims payment of the remaining
instalment of EUR 10’000.
15. After having been informed by FIFA of the request of the Claimant, the
Respondent paid the Claimant the amount of EUR 10’000 on 16 April 2009,
after having received the three unused cheques from the Claimant.
16. The Claimant acknowledged to have received EUR 10’000 from the Respondent
on 16 April 2009, but insisted on receiving payment of the amount of EUR
82’583 in accordance with the settlement agreement.
17. In its reply to the claim, the Respondent rejected the Claimant’s arguments and
stated that it issued five cheques to the player on the following dates:
- cheque in the amount of 7’020 dated 24 October 2007,
- cheque in the amount of 5’850 dated 30 November 2007,
- cheque in the amount of 5’850 dated 31 December 2007,
- cheque in the amount of 5’850 dated 31 January 2008,
- cheque in the amount of 5’850 dated 28 February 2008.
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18. The Respondent explained that the Claimant cashed the first two cheques in
the total amount of EUR 22’000, after which the parties agreed to sign the
amendment, because the player asked for other methods of payment.
19. According to the Respondent, art. 5 of the amendment obliged the Claimant
to return the unused cheques, prior to receive any further payments by the
Respondent.
20. The Respondent argued that since the player did not return the unused
cheques the Respondent delayed the last instalment in the amount of EUR
10’000, even though it should not have paid the player any of the instalments
prior to the return of the cheques.
21. The Respondent further explained that it hesitated to pay the last instalment,
because according to C Law, holding a cheque equals holding cash money. The
Respondent explained that it paid the last instalment in the amount of EUR
10’000 out of goodwill despite of the fact that the Claimant had not returned
the cheques.
22. For these reasons, the Respondent fully rejects the claim lodged by the
Claimant.
23. In its replica, the Claimant pointed out that art. 5 of the amendment was not a
condition precedent to the obligation of the Respondent to pay. The return of
the unused cheques was more a formality as there is no time limit indicated to
fulfil this obligation.
24. The Claimant further explained that the Respondent only informed him to
return the cheques in its reply to the claim he lodged in front of FIFA and that
he had never been informed of such alleged condition before.
25. Moreover, the Claimant stated that before the claim was lodged in front of
FIFA the club always paid the instalments, without having received the unused
cheques from him.
26. In addition, the player informed FIFA that he returned the unused cheques on
27 February 2009 to the Respondent. The Claimant also presented a letter from
his former legal representative, who was present at the negotiations of the
settlement agreement and the amendment, in which the latter confirmed the
player’s stance and stated that the cheques were deposited at the law firm and
that they became null and void following each payment by the Respondent as
indicated in the amendment.
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27. In its final position, the Respondent maintained its previous arguments and
stated that any delay in the payments was due to the Claimant’s failure to fulfil
his obligations with respect to the return of the unused cheques. Additionally,
the Respondent provided a letter from its vice president, who negotiated the
settlement agreement and the amendment on the club’s behalf, in which the
latter confirmed the club’s position and rejected the statement of the Claimant
regarding the cheques becoming null and void after each payment.
Furthermore, the Respondent provided a letter from a C lawyer, who, inter
alia, confirmed that according to C law the cheques cannot become null and
void only because an agreement states so if they are not in the possession of
the club.
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 case at
hand. In this respect, it took note that the present matter was submitted to
FIFA on 10 February 2009. 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. 2 and 3 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 2009) 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 and a club.
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 2009), and considering that the present claim was lodged on
10 February 2009, the 2008 edition of the 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. The
members of the Chamber started by acknowledging the above-mentioned
facts and documentation contained in the file.
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5.
In this respect, the members of the Chamber took due note that, on the one
hand, the Claimant demands to be awarded payment by the Respondent of
the amount of EUR 82’583 on the basis of art. 4 of the settlement agreement,
due to the delayed payment by the Respondent of the last instalment in the
amount EUR 10’000.
6.
The Respondent, for its part, denies that it owes the Claimant any monies,
since it paid the outstanding amount of EUR 10’000 upon receipt of the
unused cheques by the Claimant in compliance with art. 5 of the amendment
and therefore fulfilled all its obligations towards the Claimant.
7.
In the light of the diverging position of the parties, the Chamber proceeded
with a more detailed analysis of the amendment and the settlement
agreement.
8.
In this context, the Chamber first established that according to art. 3 of the
settlement agreement the five instalments shall be paid in cheques.
9.
Furthermore, the Chamber took into account that, on 25 January 2008, the
parties signed the amendment to the settlement agreement. By signing the
amendment, the Claimant and Respondent agreed to amend the method of
payment of the last three instalments in the amount of EUR 30’000, i.e. by
means of a bank transfer to the player’s bank account in S instead of by
cheques.
10.
In this respect, the Chamber noted that from the wording of the amendment it
can be concluded that the Respondent had duly issued the five cheques in
accordance with the settlement agreement, which fact had not even been
disputed by the Claimant.
11.
Furthermore, the members of the Chamber recalled that art. 5 of the
amendment states that “The player will return the unused cheques to the
Club.”.
12.
In continuation, the DRC observed that the Respondent was willing to pay the
three final instalments into the Claimant’s bank account as per the player’s
request, after the Claimant had cashed the first two cheques in payment of the
first two instalments in accordance with the settlement agreement.
13.
In this respect, the Chamber took note that, following FIFA’s intervention in
the matter, the Respondent had paid the full amount due to the Claimant, i.e.
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the last outstanding instalment in the amount of EUR 10’000, upon receipt of
the unused cheques by the Claimant.
14.
As a result of the above, the Chamber concluded that, as far as the payment of
the last instalment in the amount of EUR 10’000 is concerned, an amicable
settlement had been reached between the parties.
15.
Consequently, the Chamber established that only the Claimant’s demand
regarding the amount of EUR 82’583, made up of EUR 92’583 as established in
art. 4 of the settlement agreement, from which EUR 10’000 which he received
were deducted, remains disputed. In this respect, the Chamber recalled that
such demand was based on the late payment of the final instalment of EUR
10’000 due until 28 February 2008 as per the amendment. Furthermore, the
Chamber deemed it fit to point out that the Claimant, prior to having lodged
his claim in front of FIFA, had uncontestedly been in possession of the cheque
that had been issued by the Respondent in accordance with the settlement
agreement.
16.
In this respect, the Chamber, first and foremost, went on to examine art. 4 of
the settlement agreement, which stipulates the right for the Claimant to
receive EUR 92’583 in the event of late payment of any of the five instalments
within the respective deadlines.
17.
On the other hand, the Chamber considered that according to art. 5 of the
amendment, the Claimant was obliged to return all unused cheques, which
had been issued by the Respondent in accordance with the settlement
agreement, to the Respondent.
18.
In this respect, the members of the Chamber highlighted that after having
signed the amendment, which appears to have been entered into by the
parties with the purpose of changing the method of payment of the
instalments agreed upon in the settlement agreement as per the Claimant’s
request, the Respondent had undertaken to pay the relevant instalments via a
bank transfer to the Claimant, whereas the Claimant had in fact still been in
possession of the cheques previously issued to the benefit of the Claimant as
per the settlement agreement. Obviously, theoretically the Claimant had thus
the possibility to receive the relevant payments twice, unless the pertinent
cheques were returned to the club prior to the Respondent proceeding with
the bank transfers as per the amendment. The members of the Chamber
further highlighted that the legal effect of cheques in any way cannot be set
aside by means of a private agreement. Consequently, the Chamber deemed
that art. 2 of the amendment, which, inter alia, stipulates that the cheques
would become null and void following each payment, is irrelevant and is not
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taken into consideration. In continuation, the Chamber agreed that art. 5 had
in all probability been inserted in the amendment so as to avoid any potential
double payment of the amounts due.
19.
In this context, the Chamber recalled that the Respondent, after having signed
the amendment, has paid the first two instalments without apparently having
received the unused cheques from the Claimant. In this respect, the members
of the Chamber considered that these two payments were made by the
Respondent in good faith and that such circumstance can thus not be held
against the Respondent.
20.
In continuation, the Chamber held that the Respondent had acted according to
the amendment by paying the instalment upon receipt of the unused cheques
by the Claimant. Therefore, the Respondent complied with its obligation as
soon as the Claimant had fulfilled his obligation as stated in art. 5 of the
amendment.
21.
In this regard, the Dispute Resolution Chamber held that the Respondent
cannot be held liable to pay the amount agreed in art. 4 of the settlement
agreement, which applies in case of a delayed payment of an instalment, if the
Claimant on the other hand does not comply with his obligation to return the
unused cheques to the Claimant, which in fact was the ground for the delay in
the payment of the last instalment.
22.
Furthermore, the Chamber recalled that the Claimant’s entitlement to receive
the last instalment of EUR 10’000 as agreed in the amendment had already
been settled amicably (cf. point I. 15.).
23.
On account of all the aforementioned considerations, the members of the
Dispute Resolution Chamber decided to reject the claim of the Claimant in its
entirety.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, X , is rejected.
*****
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Note relating to the motivated decision (legal remedy):
According to article 63 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
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