Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 December 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
John Bramhall (England), member
Mario Gallavotti (Italy), 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 11 July 2013, 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 the date of signature
until 30 June 2014.
2.
On 29 January 2014, the parties concluded an “Agreement” (hereinafter: the
termination agreement), which “is considered as A Final Release and discharge of
the [Respondent]’s duties toward the [Claimant] as per the Employment Contract”,
and according to which “The [Claimant] undertakes not to claim the [Respondent]
or any other parties for any further dues except the payment mentioned in clause 2
para (a,c and d)”.
3.
As per art. 2 lit. a) of the termination agreement, the Respondent agreed to pay the
Claimant the amount of USD 400,000 as follows:
USD 100,000 due on 3 February 2014;
USD 300,000 due on 15 March 2014.
4.
According to art. 2 lit. c) and d) of the termination agreement, the Respondent
undertook to pay the player the following bonuses:
USD 15,000 in the event the Respondent wins the Cup E of the
season 2013-2014;
two matches of the Tournaments F won by the Respondent, in
which the Claimant participated in.
5.
On 29 April 2014, the Claimant submitted a claim against the Respondent in front of
FIFA, completed on 2 September 2016, requesting the following payments, plus 5%
interest p.a. as of 15 March 2014:
USD 400,000 as foreseen in art. 2 lit. a) of the termination agreement;
If any, the bonuses under art. 2 lit. c) and d) of the termination agreement.
6.
In this respect, the Claimant explained that considering the failure of the
Respondent to pay his salary under the employment contract and in view of the
interest of a third club in the Claimant’s transfer, the parties decided to sign the
relevant termination agreement. However, the Claimant held that, despite the said
termination agreement, the Respondent did not pay him the agreed amount on the
agreed due dates.
7.
In its response to the claim, the Respondent sustained that the Claimant’s claim was
prescribed since it considered that more than two years had elapsed between the
events giving rise to this dispute – i.e. the alleged due dates of 3 February 2014 and,
Player A, Country B / Club C, Country D
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respectively, 15 March 2014 – and the submission of the relevant claim on 2
September 2016. The Respondent further underlined that the agent’s
correspondence sent on 29 April 2014 could not constitute the Claimant’s claim,
which should be considered as being explicitly lodged on 2 September 2016.
8.
In particular, the Respondent emphasised that, in his letter sent on 29 April 2014,
the alleged agent of the Claimant never indicated that he was legally representing
the Claimant as he did not submit any power of attorney together with his letter
sent on that date. The Respondent deemed that the mere fact that the agent
mentioned in his letter that, allegedly, there were also some payments due to the
Claimant, cannot automatically imply that the agent would have lodged a claim on
behalf of the Claimant.
9.
In view of the aforementioned, the Respondent requested the Claimant’s claim to
be inadmissible.
10.
Furthermore, as to the substance of the case, the Respondent entirely rejected the
Claimant’s claim “for the sake of good order”.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the 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 29 April 2014.
Consequently, the 2012 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 stake (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 2016), 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 of Country B and a Club of 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
2016), and considering that the present claim was lodged in front of FIFA on 29
April 2014, the 2012 edition of said Regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
Player A, Country B / Club C, Country D
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4.
The competence of the DRC and the applicable regulations having been established,
and before entering the substance of the matter, the Chamber reverted to the
argument of the Respondent, according to which the present matter is barred by
the statute of limitations. In this regard, the members of the Chamber referred to
art. 25 par. 5 of the Regulations, according to which, inter alia, the Dispute
Resolution Chamber shall not hear any case subject to the said Regulations if more
than two years have elapsed since the event giving rise to the dispute. Bearing in
mind the aforementioned, and taking into account the documentation on file, the
DRC considered that the present claim had been lodged in front of the DRC on 29
April 2014, albeit completed on 2 September 2016, and that the event giving rise to
the dispute was the respective payment due on 3 February 2014 and 15 March 2014.
Consequently, the members of the Chamber had to reject the argument of the
Respondent and confirmed that the present petition was lodged in front of the DRC
within the said two-year time limit. The matter is thus not barred by the statute of
limitations in accordance with art. 25 par. 5 of the Regulations.
5.
Having established the aforementioned, the Chamber entered into the substance of
the matter. The members of the Chamber started by acknowledging the facts of the
case as well as the documentation on 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.
6.
In this respect and in a first instance, the DRC acknowledged that, on 11 July 2013,
the Claimant and the Respondent had concluded an employment contract valid as
of the date of signature until 30 June 2014.
7.
Equally, the DRC took note that, on 29 January 2014, the parties had concluded an
agreement regarding the termination of the contract and, in particular, agreed
upon the payment of the total amount of USD 400,000, payable in two instalments,
respectively of USD 100,000 due on 3 February 2014 and of USD 300,000 due on 15
March 2014.
8.
In continuation, the DRC observed that the Claimant alleged that the Respondent
had failed to pay him the relevant amount of USD 400,000 as per the termination
agreement. Equally, the Chamber took note that the Respondent solely rejected the
Claimant’s claim pertaining to its substance.
9.
At this stage, the members of the DRC deemed it fit to recall the content of art. 12
par. 3 of the Procedural Rules according to which any party claiming a right on the
basis of an alleged fact shall carry the burden of proof.
Player A, Country B / Club C, Country D
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10.
Bearing in mind the above, the Chamber concurred that the Respondent did not
provide any reasons, or documentary evidence, pertaining to the non-payment of
the amount foreseen in the termination agreement signed with the Claimant.
11.
Therefore, the Chamber decided that in accordance with the general legal principle
of pacta sunt servanda, the Respondent was liable to pay to the Claimant the
amount of USD 400,000, as set forth in the termination agreement.
12.
In continuation and with regard to the Claimant's request for interest, as well as the
constant practice of the Dispute Resolution Chamber in this regard, the DRC decided
that the Respondent must pay to the Claimant an interest of 5% p.a. on the amount
of USD 400,000 as follows:
5% p.a. as of 15 March 2014 on the amount of USD 100,000;
5% p.a. as of 16 March 2014 on the amount of USD 300,000.
13.
With regard to the Claimant’s request pertaining to bonuses, the DRC referred to
art. 12 par. 3 of the Procedural Rules and decided to reject said request insofar as
the Claimant did not substantiate this part of the claim.
14.
Finally, the DRC concluded its deliberations in the present matter by establishing
that any further claims lodged by the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of USD 400,000 plus 5% interest
p.a. until the date of effective payment as follows:
a. 5% p.a. as of 15 March 2014 on the amount of USD 100,000;
b. 5% p.a. as of 16 March 2014 on the amount of USD 300,000.
4.
In the event that the amount foreseen plus interest is not paid within the stated
time limit by the Respondent, the present matter shall be submitted, upon request,
to FIFA’s Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
Player A, Country B / Club C, Country D
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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 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
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Marco Villiger
Deputy Secretary General
Encl: CAS directives
Player A, Country B / Club C, Country D
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