Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 29 August 2011,
by Mr Philippe Diallo (France), DRC judge
on the claim presented by the player,
A,
as Claimant
against the club
D,
as Respondent
regarding a contractual dispute between the parties
I.
Facts of the case
1.
On 24 July 2009, the player A (hereinafter: the Claimant) and the club D
(hereinafter: the Respondent) concluded an employment contract, valid from 24
July 2009 until 30 May 2010, which provided for a total salary of EUR 10,000 to be
paid in 10 equal monthly instalments, plus bonuses.
2.
On 25 July 2009, the parties signed a supplementary contract, valid until 30 May
2010, which provided for an additional salary of EUR 20,000 to be paid in 10 equal
monthly instalments as well as a signing fee of EUR 3,000 to be paid “in advance”.
3.
On 31 March 2010, the Claimant and the Respondent signed a termination
agreement (hereinafter: the termination agreement), by means of which the
parties decided to terminate “all agreements and/or any supplementary
agreements” concluded between the parties.
4.
According to article 4 of the termination agreement, the following financial terms
had been agreed upon: “The Club and the Player both agrees that as of today the
remaining amount that the Club has to pay the Player is the amount of EUR
16,300.00 (Sixteen thousand three hundred Euros). The Club and the Player also
agrees that in case the Club pays the player the whole amount before 31/5/2010
the Player agrees to be paid EUR 3,300.00 (Three thousand three hundred Euros)
less and in case the Club pays the player the whole amount after 31/5/2010 the
player does not agree to be paid any money less but the whole amount of 16,300
(Sixteen thousand three hundred Euros) and the Club agrees to do so.”
5.
Furthermore, the termination agreement stated that: “With this documents is to
be confirmed that all Articles of the Contract of Employment have been fully
performed with respect and honour from both sides.”
6.
On 26 July 2010, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of the termination agreement. In this respect, the Claimant
indicated he had not been paid the amount due under the termination agreement
and, therefore, claimed the outstanding amount of EUR 16,300, plus interest and
legal fees.
7.
On 2 September 2010, the Respondent provided FIFA with its position in response
to the Claimant’s claim. In this respect, the Respondent acknowledged that it had
signed a termination agreement with the Claimant and acknowledged the
amount agreed upon in said termination agreement. Nevertheless, the
Respondent argued that it had “supplied a car to the player for his transfer and
according to the terms of his contract with us, he should have returned the car in
a condition similar to the one when he received it. However the car was badly
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damaged by him and despite the fact that the player had originally accepted to
pay the amount of €1,000 for the repairs, he finally refused to do so. As a result
our Club has paid for the repairs and therefore the amount owed to the player is
€13,000 - €1,000 = €12,000”. Based on the aforementioned, the Responded
claimed that it had not proceeded with the payment, since the Claimant was not
willing to accept the deduction of €1,000.
8.
On 4 October 2010, the Claimant denied all the allegations made by the
Respondent and reiterated his position that the Respondent still owed him EUR
16,300.
9.
On 28 February 2011, the Respondent maintained its previous position and
rejected once more the Claimants’ allegations. Furthermore, it enclosed a copy of
an invoice for the repair of the car amounting to EUR 1,150.
II.
Considerations of the DRC judge
1.
First of all, 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 26 July 2010. Consequently, the DRC judge concluded that
the 2008 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 hand (cf. art. 21 par. 2 and 3 of the
Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 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 decide on the present litigation, which
concerns an employment-related dispute with an international dimension
between a player and a club.
3.
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 Regulations on the Status and Transfer of Players (editions 2009 and 2010) and
considering that the present claim was lodged in front of FIFA on 26 July 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.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC
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judge started by acknowledging the above-mentioned facts as well as the
documentation contained in the file.
5.
In this respect and first of all, the DRC judge acknowledged that, on 24 July 2009,
the Claimant and the Respondent had concluded an employment contract valid
from 24 July 2009 until 30 May 2010 and, on 25 July 2009, a supplementary
contract valid from 25 July 2009 until 30 May 2010.
6.
Equally, the DRC judge took note that, on 31 March 2010, the parties had agreed
to prematurely terminate their contractual relationship with immediate effect by
means of a termination agreement. In particular, the DRC judge noted that the
termination agreement stipulated that “The Club and the Player both agrees that
as of today the remaining amount that the Club has to pay the Player is the
amount of EUR 16,300.00 (Sixteen thousand three hundred Euros). The Club and
the Player also agrees that in case the Club pays the player the whole amount
before 31/5/2010 the Player agrees to be paid EUR 3,300.00 (Three thousand three
hundred Euros) less and in case the Club pays the player the whole amount after
31/5/2010 the player does not agree to be paid any money less but the whole
amount of 16,300 (Sixteen thousand three hundred Euros) and the Club agrees to
do so“.
7.
In addition, the DRC judge observed that the Claimant is claiming the amount of
EUR 16,300 plus interest and legal fees from the Respondent, thereby asserting
that the Respondent had not yet paid the amount agreed upon in the termination
agreement.
8.
Finally, the DRC judge took note that, for its part, the Respondent had
acknowledged having signed the termination agreement with the Claimant and
admitted it did not yet pay the relevant amount to the latter. However, the
Respondent justified the non-payment by arguing that it had to pay for the repair
of the car it had provided to the Claimant, which was returned by the Claimant in
“bad condition”. In this respect, the DRC judge took into account that the
Respondent argued to have paid EUR 1,000 for the repair and duly noted the
invoice submitted by the Respondent. The Respondent deemed that this amount
had to be deducted from the sum of EUR 13,000, which is the amount stipulated
in the termination agreement in case that the Respondent would pay the
Claimant before 31 May 2010. As to that, the DRC judge further noted that, as a
result, the Respondent was of the opinion that only the amount of EUR 12,000
was due to the Claimant.
9.
With due consideration to the above, the DRC judge recalled that the parties had
signed a termination agreement by means of which they had agreed to mutually
terminate their employment relationship and that the termination agreement
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stipulated that “with this documents is to be confirmed that all Articles of the
Contract of Employment have been fully performed with respect and honour from
both sides”. Furthermore, the said termination agreement provided for the
payment of the amount of EUR 16,300, and, should this amount be paid by the
Respondent to the Claimant before 31 May 2010, a deduction of EUR 3,300 would
be made from the said amount.
10.
In this context, the DRC judge was eager to emphasise that should the Claimant
not have fully fulfilled his obligations towards the Respondent in connection with
the employment contract concluded between both parties, as asserted by the
Respondent, then the Respondent should not have concluded a termination
agreement agreeing, amongst others, that “all Articles of the Contract of
Employment have been fully performed with respect and honour from both
sides”. In other words, the Respondent could not, after having agreed on the
termination of the employment contract by means of a termination agreement,
contest the contents of said termination agreement on the basis of an alleged
breach of the employment contract. Therefore, the DRC judge was of the opinion
that, apart from the payment of the amount of EUR 16,300, the parties had
agreed upon the fact that they had no further claims against each other.
11.
Therefore, the DRC judge found that there was no basis to deduct the amount of
EUR 1,000 as claimed by the Respondent and ruled that the full amount should be
paid to the Claimant by the Respondent in accordance with what is agreed upon
between the parties in the termination agreement.
12.
In view of the above and bearing in mind that according to the termination
agreement the Respondent had to pay to the Claimant the amount of EUR 16,300
in case no payment was made before 31 May 2010, the DRC judge decided that
the Claimant is entitled to receive the amount of EUR 16,300 from the
Respondent.
13.
In continuation, taking into account the Claimant’s request for interest, in
accordance with the constant practice of the Dispute Resolution Chamber, the
DRC judge decided that the Claimant is entitled to receive interest at the rate of
5% p.a. on the amount of EUR 16,300 as of 1 June 2010.
14.
Finally, the DRC judge held that the Claimant’s claim for procedural compensation
shall be rejected in accordance with art. 18 par. 4 of the Procedural Rules.
15.
In view of all the above-mentioned considerations, the DRC judge decided that
the Respondent has to pay to the Claimant the total amount of EUR 16,300 plus
5% interest p.a. on the said amount as from 1 June 2010 until the date of effective
payment.
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16.
The DRC judge concluded its deliberations in the present matter by rejecting any
further claim of the Claimant.
III.
Decision of the Dispute Resolution Chamber (DRC) judge
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent, D, has to pay to the Claimant, A, the amount of EUR 16,300, plus
interest at the rate of 5% p.a. on the said amount as from 1 June 2010 until the
date of effective payment, within 30 days as from the date of notification of this
decision.
3.
Any further claims lodged by the Claimant, A, are rejected.
4.
If the aforementioned amount plus interest is not paid within the abovementioned deadline, the present matter shall be submitted, upon request, to
FIFA’s Disciplinary Committee for consideration and a formal decision.
5.
The Claimant, A, 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 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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