Decision of the. Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 18 December 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Philippe Piat (France), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player A, country B as Claimant against the club, Club C, country D as Respondent regarding an employment-related dispute arisen between the parties

2 I. Facts of the case 1. On 24 January 2014, the player from country B, Player A (hereinafter: the player or Claimant), and the club from country D, Club C (hereinafter: the club or Respondent), signed an employment contract valid as from 24 January 2014 until 31 May 2014, on the occasion of his loan to the club. 2. In accordance with the contract, the player was inter alia entitled to receive EUR 50,000 remuneration to be paid as follows: a. EUR 10,000 payable on 31 January 2014; b. EUR 10,000 payable on 28 February 2014; c. EUR 10,000 payable on 31 March 2014; d. EUR 10,000 payable on 30 April 2014; and e. EUR 10,000 payable on 31 May The contract states that should the player not receive payment for thirty days following the due date, he shall have the right to unilaterally terminate the contract with just cause without the need of any notice and/or notification. 4. The contract further states that in case of termination by the player due to the delay in payment by [the club] ( ), the player shall be entitled to receive as an indemnity due to the breach by [the club] of its payment obligations, all the amounts established in this contract including the payments due before and after the termination date, with this situation being treated, as regards its consequences, as the same as that of the unilateral termination without just cause on the part of [the club]. 5. Furthermore, in relation to termination of contract [the club] accepts and agrees on the annual interest of 20% in favour of the player in case of any default on the payments by [the club] to be calculated following the due dates. 6. In addition, the contract provides that the club should pay benefits in the form of house rental fees and a reasonable car, as well as three return economy class flight tickets as country D/country B/country D. Furthermore, [the club] undertakes to pay a penalty amount of 10,000 EUR to the player in case of any default on the above mentioned benefits, which are set in favour of the player, for every breach. 7. On 17 July 2014, the player lodged a claim in front of FIFA against the club asking that he be paid outstanding remuneration deriving from the contract in the amount of EUR 50,000 plus 20% interest p.a. relating to the relevant clause of the contract; a further EUR 10,000 relating to the penalty clause of the contract; EUR 5,000 relating to the rental fee of a house (5 months x EUR 1,000); EUR 2,500 pertaining to the rental of a car; and EUR 1,245 for flight tickets (3 x EUR 415 per flight). Player A, country B/ Club C, country D 2/6

3 8. In spite of having been invited by FIFA to provide its position regarding the claim, the club did not respond to the claim or make any statements during the course of the investigation. II. Considerations of the Dispute Resolution Chamber 1. First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 17 July Consequently, the Rules governing the procedures of the Players Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 of the Procedural Rules). 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 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2014) 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 from country B and a club from country D. 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2014), and considering that the present claim was lodged on 17 July 2014, the 2012 edition of said regulations (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. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand. 5. In this respect, the DRC noted that the Claimant and the Respondent signed an employment contract valid as from 24 January 2014 until 31 May 2014, in accordance with which the Respondent would inter alia pay to the Claimant a monthly EUR 10,000. In addition, the members of the Chamber noted that the contract provided for three return economy class flight tickets country D/country B/country D and fringe benefits including house rental and a car. Player A, country B/ Club C, country D 3/6

4 6. Furthermore, the members of the DRC noted that the employment contract provided that [the club] undertakes to pay a penalty amount of 10,000 EUR to the player in case of any default on the above mentioned benefits, which are set in favour of the player, for every breach. 7. In continuation, the DRC took into consideration that according to the Claimant, the Respondent had failed to pay his remuneration in the total amount of EUR 50,000, corresponding to unpaid salaries of January, February, March, April and May 2014, in the amount of EUR 10,000 per month. The Claimant further claimed that the Respondent had failed to provide him with three economy class flight tickets country D/country B/country D as well as fringe benefits in the form of house rental and a reasonable car amounting to EUR 7,500. The Claimant further claimed 20% p.a. interest in relation to the pertinent contractual clause (cf. point I.5 above). 8. Subsequently, the members of the Chamber noted that the Respondent failed to present its response to the claim of the Claimant in spite of having been invited to do so. By not presenting its position to the claim, the Chamber was of the opinion that the Respondent renounced its right of defence and thus accepted the allegations of the Claimant. 9. Furthermore, as a consequence of the preceding consideration, the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of the documentation already on file; in other words, upon the statements and documents presented by the Claimant. 10. On account of the aforementioned considerations, the members of the Chamber established that the Respondent had failed to remit the Claimant s monthly remuneration in the total amount of EUR 50,000 corresponding to 5 monthly salaries as from January 2014 until May 2014 in accordance with the pertinent employment contract. Consequently, the Chamber decided that the Respondent must pay to the Claimant the amount of EUR 50,000 in connection with outstanding salaries. 11. Equally, as regards the Claimant s claim pertaining to air tickets and on the basis of the information provided by FIFA Travel and referring to the relevant terms of the employment contract, the Chamber decided that the Respondent must pay to the Claimant the amount of EUR 1,140 for three air tickets country D-country B for the season. 12. With respect to the fringe benefits referred to in the contract, the members of the Chamber considered that in the absence of any pecuniary value in the contractual condition relating to housing rental and a car and any documentary evidence in relation to this (cf. art. 12 par. 3 of the Procedural Rules), the Chamber had to reject the Claimant s claim amounting to EUR 7,500 relating to said fringe benefits. Player A, country B/ Club C, country D 4/6

5 13. In continuation, the members of the Chamber considered the applicability of the relevant penalty clause of the employment contract (cf. point I.6 above). 14. After due deliberation, the members of the Chamber concluded that penalty clauses may freely be entered into by the contractual parties and may be considered acceptable in the event that the pertinent written clause meets certain criteria such as proportionality and reasonableness. In this respect, the Chamber highlighted that in order to determine whether a penalty clause is to be considered acceptable, the specific circumstances of the relevant case brought before it shall also be taken into consideration. 15. In the specific case at hand, the members of the Chamber deemed that the penalty fee of EUR 10,000, which the parties contractually agreed upon, is both proportionate and reasonable in the case at hand. 16. On account of all of the above, the Chamber decided that said EUR 10,000 contractual penalty fee is valid and applicable in the present matter. 17. The members of the Chamber then turned their attention to the Claimant s request for 20% p.a. interest and noted that the relevant clause was only applicable in case of premature termination of contract and, having considered that in the matter at hand there was no premature termination of contract, the relevant clause was not applicable. Furthermore, and for the sake of good order, the Chamber wished to emphasise that in accordance with the longstanding practice of the DRC, no such additional interest shall be awarded if a penalty clause is applicable and has been imposed. 18. Consequently, the Chamber decided that in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant the total amount of EUR 61, Finally, the members of the Chamber concluded their deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant outstanding remuneration in the amount of EUR 61,140, within 30 days as from the date of notification of this decision. Player A, country B/ Club C, country D 5/6

6 4. In the event that the amount due to the Claimant in accordance with the abovementioned number 2. is not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limits and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. Any further claim lodged by the Claimant is rejected. 6. The Claimant is directed to inform the Respondent 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: For the Dispute Resolution Chamber: Court of Arbitration for Sport Avenue de Beaumont Lausanne Switzerland Tel: Fax: info@tas-cas.org Jérôme Valcke Secretary General Encl. CAS directives Player A, country B/ Club C, country D 6/6