Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 April 2012,
in the following composition:
Geoff Thompson (England), Chairman
Carlos Soto (Chile), member
Brendon Schwab (Australia), member
Damir Vrbanovic (Croatia), member
Todd Durbin (USA), member
on the claim presented by the player
B,
represented by M and G, Attorneys at Law
as Claimant
against the club
A,
represented by K, Lawyer
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 16 July 2009, the player B (hereinafter: the Claimant), and the club A
(hereinafter: the Respondent), concluded an employment contract (hereinafter:
the first contract), valid as from the date of signature until
31 May 2012, by means of which the Claimant was entitled to EUR 30,000 for the
season 2009/2010, EUR 35,000 for the season 2010/2011 and EUR 40,000 for the
season 2011/2012. The parties also signed a document titled “side agreement”
dated 17 July 2009, establishing further remuneration.
2.
On 29 June 2010, the Claimant and the Respondent decided to terminate the first
contract and signed a termination agreement (hereinafter: the termination),
which provided the Claimant with a total remuneration of EUR 100,000, divided
as following:
- EUR 25,000 upon signing the termination;
- EUR 25,000 due on 1 September 2010;
- EUR 50,000 payable in five monthly instalments of EUR 10,000 each, due on
the first day of each of the following months: November 2010, December 2010,
January 2011, February 2011 and March 2011.
3.
On 1 January 2011, the Claimant and the Respondent concluded a new “Contract
of Employment” (hereinafter: the second contract) valid as from the date of
signature until 31 May 2012.
4.
The Clause 2 of the second contract provided the total remuneration of EUR
50,000, payable as follows:
Season 2010/2011:
- EUR 20,000 payable in five monthly instalments of EUR 4,000 each, being the
first due on 31 January 2011 and the last on 31 May 2011;
Season 2011/2012:
- EUR 30,000 payable in ten monthly instalments of EUR 3,000 each, being the
first due on 31 August 2011 and the last on 31 May 2012.
5.
On 2 January 2011, in addition to the second contract, the parties concluded an
“agreement” (hereinafter: the agreement), which provided inter alia the
following:
- EUR 30,000 as sign-on fee;
Season 2010/2011:
- EUR 40,000 payable in five monthly instalments of EUR 8,000 each, being the
first due on 31 January 2011 and the last on 31 May 2011;
Season 2011/2012:
- EUR 80,000 payable in ten monthly instalments of EUR 8,000 each, being the
first due on 31 August 2011 and the last on 31 May 2012.
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6.
On 29 June 2011, the Claimant lodged a claim against the Respondent before
FIFA, claiming a total amount of EUR 111,000 plus interest, composed of:
- EUR 75,000 as outstanding remuneration based on the termination;
- EUR 36,000 as outstanding monthly instalments corresponding to the months
of March 2011 until May 2011, composed of instalments of EUR 4,000 each as
per the second contract, as well as of instalments of EUR 8,000 each as per the
agreement.
7.
In this respect, the Claimant asserted that upon conclusion of the termination,
the Respondent honoured the first payment consistent of EUR 25,000 on the day
of its signature. However, according to the Claimant, the Respondent has failed
to pay all the other instalments as established in the termination in the
aggregate amount of EUR 75,000.
8.
Moreover, the Claimant recognized the payments of the monthly instalments for
January 2011 and February 2011 based on the second contract and the
agreement, in a total amount of EUR 54,000. In this regard, the Claimant held
that the Respondent has not paid the instalments concerning the period between
March 2011 until May 2011 in accordance with the second contract and the
agreement.
9.
The Respondent submitted its position, by means of which it has accepted having
failed to pay to the Claimant the amount of EUR 36,000 concerning the second
contract and the agreement, as claimed.
10.
On the other hand, the Respondent held that the amounts established in the
termination agreement were allegedly included in the second contract, thus the
Claimant would not be entitled to claim any amount regarding the termination.
In this respect, the Respondent alleged that the second contract had a high
remuneration because it took into account the amounts established in the
termination. Moreover, the Respondent stated that this is the reason it had
agreed to conclude a new employment contract with the Claimant. The
Respondent did not submit any evidence.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC
or Chamber) analysed whether it was competent to deal with the case at hand. In
this respect, the Chamber took note that the present matter was submitted to
FIFA on 29 June 2011, thus after 1 July 2008. Consequently, the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (edition 2008; hereinafter: the Procedural Rules) are applicable to the
matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules).
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2.
Subsequently, the members of the DRC referred to art. 3 par. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 2 in combination with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
2010), the Dispute Resolution Chamber shall adjudicate on employment-related
disputes between a club and a player of an international dimension. As a
consequence, the Dispute Resolution Chamber confirmed to be competent to
deal with the matter at stake, which concerns an employment-related dispute
between player B and club A.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, the Chamber confirmed that in
accordance with art. 26 par. 1 and 2 of Regulations on the Status and Transfer of
Players (edition 2010), and considering that the present claim was lodged on
29 June 2011, the 2010 edition of the Regulations on 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 DRC entered into the substance of the matter. In doing so, the
members of the Chamber acknowledged all the facts and documentation
provided by the parties.
5.
In this respect, the Chamber started by acknowledging that, on 16 July 2009, the
Claimant and the Respondent concluded an employment contract, valid until 31
May 2012, which was terminated as per the termination agreement signed by
both parties on 29 June 2010. The termination established that the Claimant
would be entitled to a total remuneration amounting to EUR 100,000 divided in
instalments (cf. point I. 2).
6.
In addition, the Chamber acknowledged that the Claimant and the Respondent
concluded the second contract valid as from 1 January 2011 until 31 May 2012. In
addition, the Chamber noted that the Claimant and the Respondent concluded
the agreement in addition to the second contract, valid as from 2 January 2011.
7.
The Dispute Resolution Chamber took note that the Claimant alleged that the
Respondent did not honour its obligations towards the Claimant regarding the
termination, by failing to pay the amounts due for September 2010 until March
2011 amounting to EUR 75,000.
8.
Moreover, the DRC took also note that the Claimant held having fulfilled its
obligations regarding the second contract and the agreement, but the
Respondent failed to pay the monthly installments due for March 2011 until May
2011, amounting to EUR 36,000.
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9.
In this respect, the Chamber took due note that the Respondent accepted owing
the amount of EUR 36,000 to the Claimant regarding the second contract and the
agreement, as claimed. On the other hand, the Respondent alleged that the
amounts agreed on the termination were included in the second contract.
However, the Respondent did not provide any evidence in this regard.
10.
At this point, the DRC first highlighted that it remained undisputed that the
Respondent did fail to fulfil its financial obligations concerning the second
contract and the agreement, thus still owing the Claimant the aggregate amount
of EUR 36,000 regarding the remuneration due for the period between March
2011 and May 2011. Therefore, the Respondent has to pay to the Claimant EUR
36,000.
11.
In continuation, and considering the contradictory arguments presented by the
parties, the Chamber proceeded to analyse whether the financial terms of the
termination were included in the second contract, as argued by the Respondent.
12.
In this respect, the DRC considered that the Respondent did not provide any
evidence in this regard. In this context, the Chamber referred to art. 12 par. 3 of
the Procedural Rules, which establishes that any party claiming a right on the
basis of an alleged fact shall carry the burden of proof, and determined that the
Respondent did not prove that the termination agreement was included in the
second contract. Moreover, the DRC took note that the second contract did not
make any reference to the termination agreement, and therefore, such
conclusion cannot be withdrawn from the second contract. Additionally, the DRC
highlighted that the financial terms of the second contract do not substantially
differ from the terms of the first contract signed by the parties.
13.
As a consequence and considering all the above, the DRC concluded that the
financial terms of the termination were not anyhow included in the second
contract.
14.
Once the latter was established, the DRC took note that the Respondent did not
submit any evidence concerning the payment of the instalments established in
the termination agreement, claimed by the Claimant as outstanding, amounting
to EUR 75,000. Therefore, the Respondent is liable to pay EUR 75,000 to the
Claimant.
15.
In this regard and after a through analysis of the present matter, the Chamber
considered that the Respondent is liable and has to pay the total amount of
EUR 111,000 to the Claimant, consisting of EUR 75,000 based on the termination
and EUR 36,000 based on the second contract and the agreement.
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16.
Concerning the interest claimed by the Claimant, the DRC noted that the contract
did not provide for any specific interest rate in case of late payment.
Consequently, the DRC decided to award, in accordance with the constant
practice of the Dispute Resolution Chamber, default interest rate of 5% p.a. to
the Claimant as from the first day after the respective due dates of each
instalment.
17.
Consequently, the Chamber decided to accept the claim of the Claimant and that
the Respondent is liable to pay him the total amount of EUR 111,000.
Additionally, the DRC decided that the Claimant’s petition for interests is
accepted and that the respondent is liable to pay 5% p.a. interests as from each
due date as established in the termination, in the second contract and in the
agreement, respectively.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, B, is accepted.
2.
The Respondent, A, has to pay to the Claimant, B, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount of
EUR 111,000 plus interest at 5% p.a. until the date of effective payment as
follows:
- 5% interest p.a. over the amount of EUR 25,000 as from 2 September 2010;
- 5% interest p.a. over the amount of EUR 10,000 as from 2 November 2010;
- 5% interest p.a. over the amount of EUR 10,000 as from 2 December 2010;
- 5% interest p.a. over the amount of EUR 10,000 as from 2 January 2011;
- 5% interest p.a. over the amount of EUR 10,000 as from 2 February 2011;
- 5% interest p.a. over the amount of EUR 10,000 as from 2 March 2011;
- 5% interest p.a. over the amount of EUR 12,000 as from 1 April 2011;
- 5% interest p.a. over the amount of EUR 12,000 as from 1 May 2011;
- 5% interest p.a. over the amount of EUR 12,000 as from 1 June 2011.
3.
In the event that the above-mentioned amounts are not paid within the stated
time limits, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
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4.
The Claimant, B, is directed to inform the Respondent, A, 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
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