Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 December 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Philippe Piat (France), member
Damir Vrbanovic (Croatia), member
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 15 June 2009, 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 from the date of signature until
15 June 2012.
2.
According to arts. 2 and 4 of the contract, the Claimant was entitled to receive a
monthly salary in the amount of USD 1,000 and 6 instalments of USD 12,000 each,
payable on 1 October2009, 1 April 2010, 1 October 2010, 1 April 2011, 1 October 2011,
1 April 2012.
3.
On 30 September 2009, the parties signed an annex to the contract (hereinafter: the
annex) also valid from 15 June 2009 until 15 June 2012, by means of which the parties
modified the payment schedule of the contract and agreed upon the following terms
of payment;
a. USD 1,000 corresponding to the monthly salary;
b. USD 10,000 payable until 1 October 2009;
c. USD 6,000 payable until 1 March 2010;
d. USD 8,000 payable until 1 June 2010: due in case the Claimant is part of the
starting eleven in 70% of the matches;
e. USD 8,000 payable until 1 August 2010;
f. USD 8,000 payable until 1 March 2011;
g. USD 8,000 payable until 1 June 2011: due in case the Claimant is part of the
starting eleven in 70% of the matches;
h. USD 8,000 payable until 1 August 2011;
i. USD 8,000 payable until 1 March 2012;
j. USD 8,000 payable until 1 June 2012: due in case the Claimant is part of the
starting eleven in 70% of the matches;
4.
On 4 June 2010, the Claimant contacted the Respondent in order to collect the
outstanding payment of USD 6,000, plus interest, which would have been payable until
1 March 2010. Furthermore, the Claimant informed the Respondent that in case of noncompliance within eight days, he would terminate the contract and request the
payment of the remaining value of the contract amounting to USD 62,000.
5.
On 24 June 2010, due to the Respondent’s alleged lack of answer, the Claimant
terminated the annex to the contract, informing the Respondent that he would return
to country B and lodge a claim against it.
6.
On 7 March 2011, the Claimant lodged a claim against the Respondent in front of FIFA,
requesting the payment of “USD 88,920”, plus interest, as set out below:
a. USD 6,000 corresponding to the amount payable until 1 March 2010;
b. USD 27,000 corresponding to the salaries for the months from March 2010 until
June 2012;
c. USD 8,000 corresponding to the amount payable on 1 June 2010.
d. USD 8,000 corresponding to the amount payable on 1 August 2010;
e. USD 8,000 corresponding to the amount payable on 1 March 2011;
f. USD 8,000 corresponding to the amount payable on 1 June 2011;
Player A, country B / Club C, country D
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g. USD 8,000 corresponding to the amount payable on 1 August 2011;
h. USD 8,000 corresponding to the amount payable on 1 March 2012;
i. USD 8,000 corresponding to the amount payable on 1 June 2012.
Equally, the Claimant requested the Respondent to bear all costs of the procedure.
7.
In this context, the Claimant explained that, after allegedly having been complying
with all the obligations according to the contract, he had only received partial
payments of the monies stipulated in the annex in the total amount of USD 19,080.
8.
The Claimant further claims that from 7 February 2010 to 30 May 2010 he was on loan
with the club from country F, Club E. According to the Claimant, the loan agreement
established that 50% of his remuneration would be paid by Club C and 50% by Club E.
Once he returned from loan with Club E in June 2010, the Respondent allegedly did not
invite him for the training and failed to pay his remuneration. Thus, after having
unsuccessfully reminded the Respondent of its arrears on 4 June 2010, the Claimant
terminated the contract on 24 June 2010.
9.
In its response to the claim, the Respondent rejected the Claimant’s arguments. In this
context, the Respondent alleges having started to negotiate “about continuing further
cooperation and harmonizing their mutual rights and duties” after receiving the
Claimant’s communication on 4 June 2010 (cf. point I.4 above).
10.
As a consequence, on 11 June 2010, the parties signed an agreement in order to
terminate the contract, as well as a declaration, by means of which the Claimant
“confirm[s] that on 11th June 2010 [he] accepted the Termination of Non-amateur
Player Contract […] of 15th June […]. Accepting the Contract Termination [he] agreed
to receive a payment of monetary amount out of Contractual obligations which had
remained towards [him], namely the amount of $ 6.000 […], which [he] had received at
the amount of 8,400 […], which equals $ 6,000.00 according to the mean currency
exchange rate. [He] confirm[s] by this Declaration that [he does] not have any claims
from [the Respondent], and that the rights and obligations under the Non-amateur
Player Contract […] of 15th June 2009 and from the Annexe of the Contract of
30th September 2009 cease to exist. The mentioned amount has been paid to me in cash
which [he] confirm[s] with this Declaration and [his] autograph”.
11.
Furthermore, the Respondent pointed out that it did not cause the termination of the
contract since both parties mutually agreed to terminate it by signing the agreement
and the declaration. Thus, no further amount is due to the Claimant.
12.
Equally, in order to substantiate its response, the Respondent enclosed a statement of a
former teammate of the Claimant, by means of which he confirmed that the Claimant
“entered into an Agreement on terminating the Contract […] with [the Respondent],
and that all the remaining rights and obligations of the Contracting Parties ceased by
entering into this Agreement, which [the Claimant] was aware of while entering into
the mentioned Agreement, namely he was aware that by entering into this Agreement
he waives any further claims towards the [Respondent]”.
13.
As to the Claimant’s argument according to which the Respondent failed to invite him
to resume training, the Respondent enclosed a copy of an invitation to training, dated
1 June 2010, addressed to the Claimant via fax.
Player A, country B / Club C, country D
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14.
Summing up, the Respondent rejected the Claimant’s claim and pointed out that it is
incomprehensible that the Claimant alleges having terminated the contract on 24 June
2010 when, in fact, both parties had already mutually terminated the contract and the
annex on 11 June 2010. Finally, the Respondent requested the Claimant to bear all
possible costs of the proceeding.
15.
In his reaction to the Respondent’s position, the Claimant reiterated his request,
rejected the Respondent’s comments and noted that the termination agreement and
the declaration are inexistent.
16.
In its final comments, the Respondent reiterated its previous statements and pointed
out that the Claimant failed to challenge the “irrefutable arguments and evidence”
presented by it.
17.
In relation to his contractual situation, the Claimant stated not having signed any other
employment contract from August 2010 until June 2012.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this respect, the
Chamber referred to art. 21 par. 1 of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules). The present matter was submitted to FIFA on 7 March 2011. Therefore, the
Chamber concluded that the edition 2008 of the Procedural Rules was applicable to the
matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the DRC 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 2010), it is competent to
decide on the present litigation, which concerns an employment-related dispute with
an international dimension, between an player from country B and a 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 par. 2 of the Regulations (editions 2010, 2012 and 2014), and considering
that the present claim was lodged on 7 March 2011, the 2010 edition of said
regulations is applicable to the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been established,
the Chamber entered into the substance of the matter. In doing so, it started to
acknowledge the facts of the case as well as the documents contained in the file.
However, the DRC 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.
Player A, country B / Club C, country D
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5.
Having said that, the Chamber recalled that it was undisputed by the parties that they
had signed an employment contract on 15 June 2009 valid from the date of signature
until 15 June 2012, as well as an annex to it on 30 September 2009, in accordance with
which the Claimant was entitled to receive the amounts detailed in points I. 2 and I. 3
above.
6.
In continuation, the Chamber noted that the Claimant, on the one hand, alleged that,
despite having been complying with all the obligations according to the contract, he
had only received partial payments of the monies stipulated in the annex in the total
amount of USD 19,080. The Chamber also took due note that the Claimant claims that
the Respondent, despite having been invited to do so, had failed to pay the instalment
due on 1 March 2010 in the amount of USD 6,000 (cf. point I. 3.c. above). As a
consequence, the Claimant states to have terminated the contract on 24 June 2010.
7.
The DRC further noted that the Respondent, on the other hand, rejected the claim of
the Claimant and alleged that the parties had signed a termination agreement and a
declaration on 11 June 2010, by means of which the Claimant “confirm[s] that on
11th June 2010 [he] accepted the Termination of Non-amateur Player Contract […] of
15th June […]. Accepting the Contract Termination [he] agreed to receive a payment of
monetary amount out of Contractual obligations which had remained towards [him],
namely the amount of $ 6.000 […], which [he] had received at the amount of 8,400 […],
which equals $ 6,000.00 according to the mean currency exchange rate. [He] confirm[s]
by this Declaration that [he does] not have any claims from [the Respondent], and that
the rights and obligations under the Non-amateur Player Contract […] of 15th June 2009
and from the Annexe of the Contract of 30th September 2009 cease to exist. The
mentioned amount has been paid to me in cash which [he] confirm[s] with this
Declaration and [his] autograph”.
8.
Finally, the Chamber took due note of the Respondent’s explanation, by means of
which it did not cause the termination of the contract since both parties mutually
agreed to terminate it by signing the agreement and the declaration.
9.
At this point, the Chamber deemed it appropriate to remind the parties of the wording
of art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a
right on the basis of an alleged fact shall carry the burden of proof. In this context, the
DRC noted that the Claimant alleged that “the termination agreement and the
declaration are inexistent”. However, no documentation of further argumentation was
provided by the Claimant in this respect.
10.
The Chamber further noted that the agreement and the declaration of 11 June 2010
appear to bear the signature of the Claimant. In this respect, the DRC deemed it
appropriate to emphasize that a party signing a document of legal importance, as a
general rule, does so on its own responsibility and is consequently liable to bear the
possible legal consequences arising from the execution of such document.
11.
Having established the aforementioned, the Chamber agreed that the termination
agreement and the declaration, copies of which were provided by the Respondent,
unambiguously stipulate that the Claimant would not have any further claims towards
the Respondent and that the Respondent had fulfilled all of its obligations.
Player A, country B / Club C, country D
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12.
On account of the aforementioned termination agreement and declaration, the
Chamber could not uphold the Claimant’s arguments.
13.
As a consequence, the Chamber decided to reject the claim of the Claimant in its
entirety.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player A, is rejected.
*****
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, country B / Club C, country D
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