Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 9 May 2011,
by
Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player
H,
as “Claimant”
against the club
D,
as “Respondent”
regarding an employment-related
dispute between the parties
I.
Facts of the case
1.
On 4 January 2010, the player H (hereinafter: the Claimant) and the club D FC
(hereinafter: the Respondent) signed an employment contract (hereinafter: the
contract), valid from the date of its signature until the end of the 2009/2010
season, according to which the Claimant was entitled to receive from the
Respondent, inter alia, the sum of EUR 10,000 in four equal monthly instalments
of EUR 2,500 each, the first one to be paid on 30 January 2010 and the last one to
be paid on 30 April 2010.
2.
On 10 January 2010, the Claimant and the Respondent signed a second contract
entitled “supplementary agreement” (hereinafter: the supplementary agreement),
in accordance with which the Claimant was entitled to receive from the
Respondent, inter alia, an additional amount of EUR 4,000 as follows: EUR 2,000 as
“advance payment” and EUR 2,000 in four equal monthly instalments of EUR 500
each, the first one to be paid on 30 January 2010 and the last one to be paid on 30
April 2010. In this respect, the supplementary agreement also stipulated that the
Respondent had “to provide the player [i.e. the Claimant] accommodation” in a
furnished flat but that the Claimant would have to pay “electricity and water
(Euro 600.00 per month maximum)”. Finally, the Respondent had “to provide” the
Claimant “with free for use of a middleclass car” and to pay the ”cost of repairs“.
3.
On 31 March 2010, the Claimant and the Respondent signed an agreement
(hereinafter: the termination agreement) terminating their contractual
relationship with immediate effect. In this respect, it was stipulated in the
termination agreement that the Claimant was entitled to receive from the
Respondent “the remaining amount” of EUR 7,000 and that ”the whole amount“,
i.e. the mentioned sum of EUR 7,000, had to be paid by the Respondent before 31
May 2010.
4.
On 27 July 2010, the Claimant lodged a claim with FIFA against the Respondent,
requesting from the latter the payment of EUR 7,000, plus interests. In this respect,
the Claimant referred to the termination agreement and argued that the
Respondent had never paid the amount that the parties had agreed upon.
5.
On 2 September 2010, the Respondent acknowledged having signed the
termination agreement with the Claimant but argued that the latter was not
entitled to receive the whole amount stipulated, i.e. EUR 7,000. In this respect, the
Respondent explained that “according to his contract”, the Claimant had to pay
all the expenses in connection with his flat but had failed to pay a number of
outstanding invoices when he had left. Consequently, the Respondent claimed to
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have had to pay expenses in the amount of EUR 1,556.44 on the Claimant’s behalf.
In support of its allegations, the Respondent provided FIFA with the following
invoices, written in G language, as well as with their translation in English:
- an electricity invoice addressed to the Respondent ”for the property “ for the
period 11 December 2009 - 12 February 2010 and amounting to EUR 483.69;
- an electricity invoice addressed to the Respondent ”for the property “ for the
period 19 April 2010 - 14 June 2010 and amounting to EUR 399.50;
- an electricity invoice addressed to the Respondent ”for the property “ for the
period 14 June 2010 - 24 June 2010 and amounting to EUR 382.85;
- a water invoice addressed to “N and others,” for the period 5 March 2010 - 4
May 2010 and amounting to EUR 126.23;
- a water invoice addressed to “N and others,” for the period 7 January 2010 - 5
March 2010 and amounting to EUR 94.10;
- a water invoice addressed to “N and others,” for the period 4 November 2009 - 7
January 2010 and amounting to EUR 70.27.
6.
In addition, the Respondent also argued that the Claimant had damaged the car
that he had been given and had refused to pay the cost of repair amounting to
EUR 450. Consequently, the Respondent deemed that the amounts of EUR
1,556.44 and EUR 450 should be deducted from the amount of EUR 7,000 due to
the Claimant.
7.
Finally, the Respondent alleged that it had not paid anything to the Claimant since
the latter had apparently not accepted any deductions to the amount of EUR
7,000 stipulated in the termination agreement.
8.
On 15 November 2010, the Claimant rejected the Respondent’s allegations and
argued that he had paid the water and electricity invoices. Furthermore, the
Claimant stated that he had rented the apartment by himself and that the
Respondent had had ”nothing to do with the payment of the water or the
electricity or anything else which might arise from the contractual relationship“
between him and his landlord. Moreover, the Claimant claimed that the
Respondent had submitted to FIFA “false and misleading invoices” and added that
since he had left his flat on 31 March 2010, he should not have to pay anything
after this date, nor should he be asked to pay anything for the period prior to 4
January 2010, i.e. the date on which the contract was signed. Finally, the Claimant
alleged that the water invoices did not concern the flat in which he had lived and
that two of the three electricity invoices concerned the period “19/4/2010 –
14/6/2010 and 14/6/2010 – 24/6/2010”, a period during which he was no longer
living in the said flat. Lastly, the Claimant stressed that the invoices did not prove
that the Respondent had actually paid the relevant amounts itself.
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9.
In its final statement dated 7 December 2010, the Respondent reiterated the
content of his previous submission and, in addition, claimed that the Claimant had
used the flat until 24 April 2010 and had only handed the car keys on 25 April
2010. Furthermore, the Respondent argued that it had rented the flat on the
Claimant’s behalf and provided FIFA with a copy of a document, written in G
language, as well as a part of its translation in English entitled “rental
agreement”. In this respect, it was specified in the said agreement that it
concerned the “Flat no. 2” and was valid from 11 June 2009 until 1 June 2010.
10.
Finally, the Respondent stated that the two invoices regarding water and
electricity concerned the apartment used by the Claimant.
II.
Considerations of the Dispute Resolution Chamber (DRC) judge
1.
First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as:
the DRC judge) analysed whether he was competent to deal with the case at hand.
In this respect, the DRC judge took note that the present matter was submitted to
FIFA on 27 July 2010. 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
of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 and 2 in combination with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
2010) the DRC Judge is competent to deal with the matter at sake, which concerns
an employment-related dispute with an international dimension between a player
and a club.
3.
In particular, and in accordance with art. 24 par. 2 lit. i) of the mentioned
Regulations on the Status and Transfer of Players, the DRC judge confirmed that
he may adjudicate in the present dispute which value does not exceed 100,000.
4.
Furthermore, the DRC judge 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, he confirmed that in accordance with art. 26 par. 1 and 2 of
the 2009 and 2010 editions of the Regulations on the Status and Transfer of
Players, and considering that the present claim was lodged with FIFA on 27 July
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2010, the 2009 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.
5.
His competence and the applicable regulations having been established and
entering into the substance of the matter, the DRC judge acknowledged the
above-mentioned facts as well as the documentation contained in the file.
6.
In this respect and first of all, the DRC judge acknowledged that, on 4 January
2010, the Claimant and the Respondent had concluded an employment contract
(hereinafter: the contract) that was originally valid until the end of the 2009/2010
football season.
7.
Equally, the DRC judge took note that, by means of a document dated 31 March
2010, the parties to the dispute had agreed to prematurely terminate their
contractual relationship with immediate effect. Furthermore, the DRC judge also
remarked that, as clearly stipulated in the termination agreement, the Claimant
was entitled to receive from the Respondent the amount of EUR 7,000 as final
settlement by 31 May 2010.
8.
In addition, the DRC judge observed that, in his claim to FIFA, the Claimant had
requested the payment of the amount agreed in the termination agreement, i.e.
EUR 7,000, arguing that the Respondent had failed to pay it.
9.
Finally, the DRC judge took note that, for its part, the Respondent had
acknowledged having signed the termination agreement with the Claimant and
had admitted having failed to pay the relevant amount to the latter arguing that
it had had to pay several bills amounting to a total of EUR 2,006.44, on the
Claimant’s behalf and that, consequently he deemed that EUR 2,006.44 had to be
deducted from the sum of EUR 7,000 stipulated in the termination agreement. As
to that, the DRC judge further noted that, as a result, the Respondent was of the
opinion that only the amount of EUR 4,993.56 was due to the Claimant as final
settlement.
10.
Having stated the aforementioned, the DRC judge recalled that the parties had
signed a termination agreement by means of which they had decided mutually to
terminate their employment relationship. Furthermore, said termination
agreement provided for the payment of an outstanding amount of EUR 7,000 to
be paid by the Respondent to the Claimant by 31 May 2010. In this regard, the
DRC judge was eager to emphasise that a termination agreement, in essence, is
concluded between two parties in order to settle any disputes, and in particular,
any outstanding payment obligations which might exist between them. On
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account of the aforementioned, the DRC judge held that any outstanding
amounts which have been due by the Claimant to the Respondent should have
been explicitly mentioned in the termination agreement.
11.
Therefore, and since no deduction whatsoever had been stipulated by the parties
in the termination agreement, the DRC judge found no reason to deduct the
amount of EUR 2,006.44 as claimed by the Respondent. The DRC judge thus ruled
that the full outstanding amount should be paid to the Claimant by the
Respondent in accordance with what was agreed between in the termination
agreement.
12.
In view of the above, taking into account the legal principle of Pacta sunt
servanda, which in essence means that agreements must be respected by the
parties in good faith, and bearing in mind that according to the termination
agreement, the Respondent had to pay to the Claimant the amount of EUR 7,000
as final settlement, the DRC judge came to the conclusion that the Claimant is
entitled to receive from the Respondent the amount of EUR 7,000.
13.
In continuation, taking into account the Claimant’s request for interest as well as
the constant practice of the DRC judge and of the Dispute Resolution Chamber,
the DRC judge decided that the Respondent must pay to the Claimant interest of
5% p.a. on the amount of EUR 7,000 as of the day following the day on which this
amount had fallen due, i.e. as of 1 June 2010.
14.
In view of all the above-mentioned considerations, the DRC judge decided that
the claim of the Claimant is accepted and that the Respondent has to pay to the
Claimant the total amount of EUR 7,000 plus 5% interest on the said amount as
from 1 June 2010 until the date of effective payment.
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III.
Decision of the Dispute Resolution Chamber (DRC) judge
1.
The claim of the Claimant, H, is accepted.
2.
The Respondent, D, has to pay to the Claimant, H, the amount of EUR 7,000 as
well as 5% interest per annum on the said amount as from 1 June 2010 until the
date of effective payment, within 30 days as from the notification of this
decision.
3.
If the aforementioned sum plus interest is not paid within the aforementioned
deadline, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
4.
The Claimant, H, is directed to inform the Respondent, D, immediately and directly
of the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber (DRC) judge of every payment received.
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Note relating to the motivated decision (legal remedy):
According to article 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 DRC judge
Jérôme Valcke
Secretary General
Encl. CAS Directives
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