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 24 January 2014, the player from country B, Player A (hereinafter: the player or
Claimant), and the club from country D, Club C (hereinafter: the club or Respondent),
signed an employment contract valid as from 24 January 2014 until 31 May 2014, on
the occasion of his loan to the club.
2.
In accordance with the contract, the player was inter alia entitled to receive EUR 50,000
remuneration to be paid as follows:
a.
b.
c.
d.
e.
EUR 10,000 payable on 31 January 2014;
EUR 10,000 payable on 28 February 2014;
EUR 10,000 payable on 31 March 2014;
EUR 10,000 payable on 30 April 2014; and
EUR 10,000 payable on 31 May 2014.
3.
The contract states that should the player not receive payment for thirty days following
the due date, he shall have the right to unilaterally terminate the contract with just
cause without the need of any notice and/or notification.
4.
The contract further states that ‘in case of termination by the player due to the delay
in payment by [the club] (…), the player shall be entitled to receive as an indemnity
due to the breach by [the club] of its payment obligations, all the amounts established
in this contract including the payments due before and after the termination date,
with this situation being treated, as regards its consequences, as the same as that of
the unilateral termination without just cause on the part of [the club]’.
5.
Furthermore, in relation to termination of contract ‘[the club] accepts and agrees on
the annual interest of 20% in favour of the player in case of any default on the
payments by [the club] to be calculated following the due dates’.
6.
In addition, the contract provides that the club should pay benefits in the form of
house rental fees and ‘a reasonable car’, as well as three return economy class flight
tickets as ‘country D/country B/country D’. Furthermore, ‘[the club] undertakes to pay a
penalty amount of 10,000 EUR to the player in case of any default on the above
mentioned benefits, which are set in favour of the player, for every breach’.
7.
On 17 July 2014, the player lodged a claim in front of FIFA against the club asking that
he be paid outstanding remuneration deriving from the contract in the amount of EUR
50,000 plus 20% interest p.a. relating to the relevant clause of the contract; a further
EUR 10,000 relating to the penalty clause of the contract; EUR 5,000 relating to the
rental fee of a house (5 months x EUR 1,000); EUR 2,500 pertaining to the rental of a
car; and EUR 1,245 for flight tickets (3 x EUR 415 per flight).
Player A, country B/ Club C, country D
2/6
8.
In spite of having been invited by FIFA to provide its position regarding the claim, the
club did not respond to the claim or make any statements during the course of the
investigation.
II.
Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 17 July 2014.
Consequently, the Rules governing the procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2012; hereinafter: Procedural Rules) are
applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 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 and par. 2 in combination
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
2014) 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 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 2 of the Regulations on the Status and Transfer of Players (edition 2014),
and considering that the present claim was lodged on 17 July 2014, the 2012 edition
of said regulations (hereinafter: the 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. 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 noted that the Claimant and the Respondent signed an
employment contract valid as from 24 January 2014 until 31 May 2014, in accordance
with which the Respondent would inter alia pay to the Claimant a monthly EUR
10,000. In addition, the members of the Chamber noted that the contract provided
for three return economy class flight tickets ‘country D/country B/country D’ and
fringe benefits including house rental and a car.
Player A, country B/ Club C, country D
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6.
Furthermore, the members of the DRC noted that the employment contract provided
that ‘[the club] undertakes to pay a penalty amount of 10,000 EUR to the player in
case of any default on the above mentioned benefits, which are set in favour of the
player, for every breach’.
7.
In continuation, the DRC took into consideration that according to the Claimant, the
Respondent had failed to pay his remuneration in the total amount of EUR 50,000,
corresponding to unpaid salaries of January, February, March, April and May 2014, in
the amount of EUR 10,000 per month. The Claimant further claimed that the
Respondent had failed to provide him with three economy class flight tickets ‘country
D/country B/country D’ as well as fringe benefits in the form of house rental and ‘a
reasonable car’ amounting to EUR 7,500. The Claimant further claimed 20% p.a.
interest in relation to the pertinent contractual clause (cf. point I.5 above).
8.
Subsequently, the members of the Chamber noted that the Respondent failed to
present its response to the claim of the Claimant in spite of having been invited to do
so. By not presenting its position to the claim, the Chamber was of the opinion that
the Respondent renounced its right of defence and thus accepted the allegations of
the Claimant.
9.
Furthermore, as a consequence of the preceding consideration, the Chamber
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a
decision upon the basis of the documentation already on file; in other words, upon
the statements and documents presented by the Claimant.
10.
On account of the aforementioned considerations, the members of the Chamber
established that the Respondent had failed to remit the Claimant’s monthly
remuneration in the total amount of EUR 50,000 corresponding to 5 monthly salaries
as from January 2014 until May 2014 in accordance with the pertinent employment
contract. Consequently, the Chamber decided that the Respondent must pay to the
Claimant the amount of EUR 50,000 in connection with outstanding salaries.
11.
Equally, as regards the Claimant’s claim pertaining to air tickets and on the basis of
the information provided by FIFA Travel and referring to the relevant terms of the
employment contract, the Chamber decided that the Respondent must pay to the
Claimant the amount of EUR 1,140 for three air tickets country D-country B for the
2013-14 season.
12.
With respect to the fringe benefits referred to in the contract, the members of the
Chamber considered that in the absence of any pecuniary value in the contractual
condition relating to housing rental and a car and any documentary evidence in
relation to this (cf. art. 12 par. 3 of the Procedural Rules), the Chamber had to reject
the Claimant’s claim amounting to EUR 7,500 relating to said fringe benefits.
Player A, country B/ Club C, country D
4/6
13.
In continuation, the members of the Chamber considered the applicability of the
relevant penalty clause of the employment contract (cf. point I.6 above).
14.
After due deliberation, the members of the Chamber concluded that penalty clauses
may freely be entered into by the contractual 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 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
fee of EUR 10,000, which the parties contractually agreed upon, is both proportionate
and reasonable in the case at hand.
16.
On account of all of the above, the Chamber decided that said EUR 10,000 contractual
penalty fee is valid and applicable in the present matter.
17.
The members of the Chamber then turned their attention to the Claimant’s request
for 20% p.a. interest and noted that the relevant clause was only applicable in case of
premature termination of contract and, having considered that in the matter at hand
there was no premature termination of contract, the relevant clause was not
applicable. Furthermore, and for the sake of good order, the Chamber wished to
emphasise that in accordance with the longstanding practice of the DRC, no such
additional interest shall be awarded if a penalty clause is applicable and has been
imposed.
18.
Consequently, the Chamber decided that in accordance with the general legal
principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant the
total amount of EUR 61,140.
19.
Finally, the members of the Chamber concluded their deliberations in the present
matter by establishing that any further claim lodged by the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant outstanding remuneration in the
amount of EUR 61,140, within 30 days as from the date of notification of this
decision.
Player A, country B/ Club C, country D
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4.
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
limits and the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
6.
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.
*****
Note relating to the motivated decision (legal remedy):
According to art. 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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