Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 December 2009,
in the following composition:
Slim Aloulou, (Tunisia), Chairman
Theo van Seggelen, (Netherlands), member
Jon Newman (United States of America), member
Philippe Diallo (France), member
Theodoros Giannikos (Greece), member
on the claim presented by the player,
E,
as Claimant
against the club,
P,
as Respondent
regarding a contractual dispute arisen between the parties
I.
Facts of the case
1.
On 1 August 2006, the club, P (hereinafter: the Respondent), sent a written offer
(hereinafter: the offer) to the player, E (hereinafter: the Claimant), containing the
financial terms agreed by the parties pertaining to the employment contract
negotiated by them for the years 2006-2007. The offer provided for, inter alia, a
signing fee of EUR 130,000 net to be paid by the Respondent.
2.
In August 2006, the Claimant and the Respondent concluded an employment
contract valid from its signature until 30 June 2007, for the total amount of EUR
130,000.
3.
Subsequently, on 15 May 2007, a termination agreement (hereinafter: termination
agreement) had been signed by and between the parties, by means of which the
Claimant terminated the aforementioned employment contract, receiving the
following amounts:
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EUR 25,000 as gross amount;
EUR 6,250 as personal income tax 25%;
EUR 18,750 as liquid to receive (by promissory note);
EUR 1,500 as accommodation allowance (by promissory note).
4.
Furthermore, the termination agreement provided that, with the payment of the
aforementioned compensation, the employment relationship between the parties
has come to an end and that therefore they have nothing to claim from each
other in that respect, being such document, i.e. the termination agreement, an
acquittance.
5.
In addition, the termination agreement specified that the calculation of the
personal income tax will depend on the final (income) amount of the Claimant
calculated up to 30 June 2007.
6.
On 5 November 2007, the Claimant lodged a claim against the Respondent for
alleged outstanding salaries, amounting to EUR 34,647. In this respect, the
Claimant explained that the Respondent deemed the contract’s total amount, i.e.
EUR 130,000, to be gross even though the offer, which according to the Claimant
is part of the contract, specified that the said amount is net.
7.
In its response to the claim, the Respondent stated that although the amount
stipulated in the offer was net, the one finally agreed in the employment contract
was gross. According to the Respondent, the change from net to gross is due to
the fact that the Respondent had to compensate the loan compensation that it
had to pay to the Claimant’s former club. Moreover, the Respondent remarked
that only the contract, contrariu sensu not the offer, would have to be considered
in order to solve the present dispute.
8.
Additionally, the Respondent stated that the Claimant played only between
September and November 2006, being absent due to personal and family issues,
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and that on May 2007, due to his difficulties to adapt, he proposed the
termination of the contract in order to return to his country. As a consequence,
the Respondent accepted such termination one and a half months before the
employment contract elapsed. Therefore, from the total amount of the contract,
45 days should be deducted. According to the Respondent, it complied with its
financial contractual obligations by paying the total amount of EUR 116,770.90 to
the Claimant up to 15 May 2007, i.e. date of the termination agreement.
Consequently, in order to terminate the contractual relationship and to document
the calculation of the amount due to the Claimant, the termination agreement
was signed. By means of the said agreement the outstanding amounts were paid
to the Claimant, inter alia, by means of 2 promissory notes, which were duly
cashed by the player at their respective expiration dates.
9.
Finally, the Respondent quoted the termination agreement’s provision related to
the waive of claims.
10.
In his rejoinder, the Claimant amended his request, claiming, in addition to the
EUR 34,467, also interests and costs for proceedings since 1 July 2007. In this
respect, the Claimant asserted that under the terms of the termination agreement
the Respondent engaged itself to further payments.
11.
In its final position, the Respondent remarked that the Claimant is trying to base
his claim on the financial terms agreed in the offer, even though a contract has
been signed afterwards. Finally, the Respondent underlined once again that the
financial terms and conditions of the contract had been duly complied with.
II.
Considerations
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the case at hand. In this respect, the Chamber referred to art. 21 par. 1
and 2 of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2008). The present matter was submitted
to FIFA on 5 November 2007, thus before the aforementioned rules entered into
force on 1 July 2008. Therefore, the Chamber referred to art. 18 par. 1 and 2 of
the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (DRC; edition 2005; hereinafter: Procedural Rules)
and took note that the aforementioned Procedural Rules are applicable to
proceedings submitted to FIFA after the date on which they entered into force, i.e.
1 July 2005. Consequently, the Chamber concluded that the 2005 edition of the
Procedural Rules is applicable to the matter at hand.
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.
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3.
Furthermore, the Chamber 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 Chamber referred, on the one hand, to art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (edition 2009) and,
on the other hand, to the fact that the present claim was lodged on 5 November
2007 and that the relevant employment contract was signed in August 2006, thus
before the aforementioned Regulations entered into force on 1 October 2009. In
view of the aforementioned, the Chamber referred to art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (edition 2008) and concluded
that the edition 2005 of the Regulations for the Status and Transfer of Players
(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 and, in doing
so, examined the documentation presented by the parties throughout the
proceedings and took note that, on 1 August 2006, the Respondent offered to the
Claimant to enter into an employment contract for the 2006-2007 season.
According to the said offer, the Claimant was entitled to receive a total net
remuneration of EUR 130,000.
5.
Equally, the members of the Chamber acknowledged that in August 2006 the
parties concluded an employment contract, valid from the date of its signature
until 30 June 2007 for the total amount of EUR 130,000.
6.
In this regard, the members of the Chamber noted that, on the one hand, the
Claimant claimed alleged outstanding salaries amounting to EUR 34,647 and on
the other hand, the Respondent stated to have complied with its financial
contractual obligations by paying the total amount of EUR 116,770.90 to the
Claimant up to 15 May 2007, i.e. date of termination of the labour relationship
between the parties.
7.
In this respect, the Chamber took note that, on 15 May 2007, a termination
agreement had been signed by and between the parties, by means of which the
Claimant terminated the aforementioned employment contract, receiving the
total amount of EUR 51,500.
8.
Moreover, the members of the Chamber took note that the termination
agreement provided that with the payment of the aforementioned compensation,
i.e. EUR 51,500, the employment relationship between the parties has come to an
end and that, consequently, the parties have nothing to claim from each other in
that respect, being such document an acquittance.
9.
In this regard, the Chamber acknowledged that, according to the Claimant, under
the terms of the termination agreement, the Respondent engaged itself to comply
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with further payments. On the other hand, in response to the aforementioned
allegations, the Respondent quoted the termination agreement provision related
to the waive of claims.
10.
In view of the foregoing, the members of the Chamber went on to analyse the
terms of the termination agreement, basis of the present dispute. In doing so, the
members concurred in the conclusion that the said document evidences that the
Claimant finished his employment contract whilst receiving the total amount of
EUR 51,500. Moreover, in accordance with the provisions stipulated by the parties,
the Chamber found no basis for concluding that a possible claim against one of
the parties would be accepted since the parties clearly specified that they have
nothing to claim from each other with regard to the termination of their labour
relationship, being the termination agreement an acquittance, this is, a legal
document evidencing the discharge of a debt or an obligation.
11.
Therefore, the members of the Dispute Resolution Chamber unanimously came to
the conclusion that, by means of the termination agreement concluded by and
between the parties, the Claimant discharged the Respondent of any debt whilst
waiving any claim against the latter. At the same time, in accordance with the
terms of the termination agreement, the Claimant acknowledged to have
received, in the moment of concluding the said settlement agreement, the agreed
amount as specified in the document, i.e. EUR 51,500, consisting of to EUR 25,000
as gross amount, EUR 6,250 as personal income tax (25%), EUR 18,750 as liquid to
receive (promissory note 5183608-5 XXX), EUR 1,500 as accommodation allowance
(promissory note 5183609-6 XXX).
12.
With regard to the Claimant’s claim for the reimbursement of the costs for
proceedings, the Chamber recalled the contents of art. 15 par. 3 of the Procedural
Rules, which clearly stipulates that no procedural compensation is awarded in
proceedings in front of the Dispute Resolution Chamber. Therefore, the members
of the Chamber had no other alternative than to reject this part of the claim.
13.
On account of all the aforementioned considerations, the members of the Dispute
Resolution Chamber decided to reject the claim.
III. Decision of the Dispute Resolution Chamber
The claim of the Claimant, E, is rejected.
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Note relating to the motivated decision (legal remedy):
According to art. 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
Markus Kattner
Deputy Secretary General
Encl.
CAS directives
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