Decision of the. Players Status Committee

Transcription

1 Decision of the Players Status Committee passed in Zurich, Switzerland, on 16 February 2012, in the following composition: Theo Zwanziger (Germany), Chairman V. Manilal Fernando (Sri Lanka), Deputy Chairman Chuck Blazer (USA), member Geoff Thompson (England), member Tai Nicholas (New Zealand), member Said Al Masri (Syria), member Aibek Alybaev (Kyrgyzstan), member Norman Darmanin Demajo (Malta), member Makhdoom Syed Saleh Hayat (Pakistan), member Aminu Maigari (Nigeria), member Victor Cissé (Sénégal), member Luis H. Bedoya (Colombia), member Juan Padrón Morales (Spain), member on the claim presented by the coach G, as Claimant against the club Z, as Respondent regarding a contractual dispute arisen between the parties.

2 I. Facts of the case 1. On 1 July 2009, the coach G (hereinafter: the Claimant) and the club Z (hereinafter: the Respondent) concluded an employment contract (hereinafter: the contract) valid for one year as from the date of its signature and by means of which the Claimant was entitled to receive from the Respondent a monthly salary amounting to USD 2, On 24 December 2009 the Claimant and the Respondent signed a settlement agreement, (in the original language of the agreement: Finiquito de contrato ; hereinafter: the settlement agreement) by means of which the Claimant was entitled to receive from the Respondent the amount of USD 24,000 in 8 instalments of USD 3,000 each, to be paid between February 2010 and October In this respect, it was also specified in the settlement agreement that, as of its signature, the contractual relationship between the Claimant and the Respondent would be terminated. 3. On 16 August 2010, the Claimant lodged a claim with FIFA against the Respondent requesting the payment of USD 27,000 as well as of EUR 3,000 as compensation for damages incurred from the non-fulfilment of the Respondent s obligations, including the costs of his legal defence. 4. In this respect, the Claimant referred to the settlement agreement and argued that he never received from the Respondent the amount due. 5. In spite of having been asked to do so, the Respondent never responded to the claim lodged against it, although it was informed by FIFA that, in absence of a reply, a decision would have been taken on the basis of the information and evidence at disposal. II. Considerations of the Players Status Committee 1. First of all, the Players Status Committee (hereinafter also referred to as: the Committee) analysed which procedural rules are applicable to the matter at hand. In this respect, the Committee referred to art. 21 par. 2 and 3 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 16 August 2010, thus after 1 July Therefore, the Committee concluded that the current edition of the Procedural Rules (edition 2008; hereinafter: the Procedural Rules) is applicable to the matter at hand. 2. Furthermore, the Players Status Committee analysed which edition of the Regulations on the Status and Transfer of Players is applicable as to the substance 2

3 of the matter. In this respect, the Committee referred, on the one hand, to art. 26 par. 1 and 2 of the 2009 and 2010 editions of the Regulations on the Status and Transfer of Players, and, on the other hand, to the fact that the present claim was lodged with FIFA on 16 August In view of this, the Committee concluded that 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. 3. With regard to its competence, the Players Status Committee confirmed that, on the basis of art. 3 par. 1 of the Procedural Rules in connection with art. 23 par. 1 and 3 as well as art. 22 lit. c) of the 2010 edition of the Regulations on the Status and Transfer of Players, it was competent to deal with the present matter since it concerned an employment-related dispute of an international dimension between a coach and a football club. 4. Its competence and the applicable regulations having been established, the Committee entered into the substance of the matter. In doing so and first of all, the Committee observed that the Respondent had not submitted any comments in response to the claim lodged against it by the Claimant despite having been asked to do so by FIFA. Therefore, the Committee concluded that, in this way, the Respondent had renounced to its right of defence and, thus, it had to be assumed that it had accepted the allegations of the Claimant. 5. Hence and bearing in mind the aforementioned, the Committee referred to art. 9 par. 3 of the Procedural Rules and pointed out that in the present matter a decision shall be taken upon the basis of the documents on file, in other words upon the allegations and documents provided by the Claimant. 6. In this respect, the Committee acknowledged that, on 1 July 2009, the Claimant and the Respondent had concluded an employment contract (hereinafter: the contract) that was valid for one year. Furthermore, the Committee took note that, on 24 December 2009, the parties terminated their contractual relationship and signed a settlement agreement (hereinafter: the settlement agreement) by means of which the Claimant was entitled to receive from the Respondent the amount of USD 24,000 in 8 instalments of USD 3,000 each, payable between February 2010 and October In continuation, the Committee observed that, in his claim to FIFA, the Claimant had inter alia requested the payment of USD 27,000, arguing that the Respondent had failed to pay him the amount due as per the settlement agreement. In this context, the Committee further recalled that said allegations of the Claimant had not been contested by the Respondent. 3

4 8. Bearing in mind the foregoing and in accordance with the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, as well as considering that the Respondent never contested the allegations of the Claimant, the Committee concluded that the Respondent must fulfil its obligations stipulated in the settlement agreement and, consequently, pay the amount of USD 24,000 to the Claimant. 9. On account of the above, the Committee decided that the Respondent has to pay to the Claimant the amount of USD 24, Having determined the aforementioned, the Committee turned its attention to the second part of the Claimant s claim, i.e. his request for payment of EUR 3,000 as compensation for damages, including the costs of his legal defence. 11. As to that, the Committee observed that such request had not been accompanied by any documentary evidence. Consequently and bearing in mind the content of art. 12 par. 3 of the Procedural Rules which stipulates that the burden of proof has to be carried by the party claiming a right on the basis of an alleged fact, the Committee concluded that this part of the claimant s claim could not be granted for lack of evidence. 12. Nevertheless and for the sake of good order, the Committee also recalled the provisions of art. 18 par. 4 of the Procedural Rules, which clearly stipulate that No procedural compensation is awarded in proceedings of the Players Status Committee and the DRC. 13. As a consequence of all the above, the Committee concluded its deliberations on the present dispute by deciding that the Claimant s claim is partially accepted, and therefore the Respondent must pay to the Claimant the amount of USD 24, Finally, the Committee referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which in the proceedings before the Players Status Committee and the Single Judge, costs in the maximum amount of CHF 25,000 are levied. The costs are to be borne in consideration of the parties degree of success in the proceedings and are, in principle to be paid by the unsuccessful party. 15. In this respect, the Committee reiterated that the claim of the Claimant is partially accepted and that the Respondent is the party at fault. Therefore, the Committee decided that the Respondent has to bear the entire costs of the current proceedings in front of FIFA. 4

5 16. Furthermore and according to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. Consequently and taking into account the total amount at dispute in the present matter, i.e. USD 27,000 plus EUR 3,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 5, In conclusion, and considering that the case at hand was adjudicated by the Players Status Committee in corpore, and that it did not pose any particular legal or factual difficulty, the Committee determined the costs of the current proceedings to the amount of CHF 3, Consequently, the amount of CHF 3,000 has to be paid by the Respondent to cover the costs of the present proceedings. ***** 5

6 III. Decision of the Players Status Committee 1. The claim of the Claimant, G, is partially accepted. 2. The Respondent, club Z, has to pay to the Claimant, G, the amount of USD 24,000, within 30 days as from the date of notification of this decision. 3. Any further claims lodged by the Claimant, G, are rejected. 4. If the aforementioned sum is not paid within the aforementioned deadline, an interest rate of 5% per year will apply as of the expiry of the fixed time limit and the present matter shall be submitted, upon request, to FIFA s Disciplinary Committee for consideration and a formal decision. 5. The final costs of the proceedings in the amount of CHF 3,000 are to be paid by the Respondent, club Z, within 30 days as from the date of notification of the present decision as follows: 5.1. The amount of CHF 2,000 has to be paid to FIFA to the following bank account with reference to case nr.: UBS Zurich Account number U (FIFA Players Status) Clearing number 230 IBAN: CH U SWIFT: UBSWCHZH80A 5.2. The amount of CHF 1,000 has to be paid to the Claimant, G. 6. The Claimant, G, is directed to inform the Respondent, club Z, immediately and directly of the account number to which the remittances under point 2 and 5.2 above are to be made and to notify the Players Status Committee of every payment received. ***** 6

7 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 Lausanne Switzerland Tel: Fax: info@tas-cas.org For the Single Judge of the Players Status Committee Markus Kattner Deputy Secretary General Encl. CAS directives 7