Decision of the Dispute Resolution Chamber (DRC) judge

Transcription

1 Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 26 November 2015, by Philippe Diallo (France), DRC judge, 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 5 July 2012, the player from country B, Player A (hereinafter: the Claimant) and the club from country D, Club C (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract), valid as of 6 July 2012 until 30 June Pursuant to the contract, the Claimant was entitled to receive a monthly gross salary of 1,740,000 payable up to the 10 th day following the actual month. 3. In addition, the annex of the contract provides for the following additional fees : in advance at sign the contract for Match played (championship) in line up, as substitute for each goal signed (championship) ( ) - 4 Flight tickets to go country B and back ( ) 4. On 20 December 2012, the Claimant sent an invoice to the Respondent requesting the latter to pay EUR 20,000 in order to terminate in an amicable way his employment contract. 5. On 7 January 2013, the Claimant lodged a claim against the Respondent requesting FIFA s DRC to: - States that employment agreement between the [Claimant] and the [Respondent] is terminated with just cause; - Stipulates a compensation in favour of the [Claimant] because of the failure of paying the salaries without just cause; - Condemn the [Respondent] to pay to the [Claimant] all his outstanding salaries plus the additional fees as provided for in the Contract signed between the parties (until today: EUR 20,000 as outstanding salaries + EUR 5,600 as outstanding additional fees = EUR 25,600). 6. In his claim, the Claimant explains that since the beginning of the contract, the Respondent only paid him EUR 10,000, i.e. EUR 2,500 on 30 August 2012, EUR 2,500 on 6 September 2012 and EUR 5,000 on 5 October The Claimant further asserts that on fourteen games he was included in the starting line-up and that, on two occasions, he came in as a substitute. The Claimant also adds that he scored two goals in championship games. 8. On 6 February 2013, the parties agreed to terminate the contract in exchange for the payment to the Claimant of EUR 20,000, corresponding to three monthly salaries as well as bonuses, in three instalments as follows: - EUR 9,000 upon signature of the termination agreement; Player A, country B / Club C, country D 2

3 - EUR 6,000 on 15 March 2013; - EUR 5,000 on 15 April On 26 April 2013, the Claimant informed FIFA that he had only received an amount of EUR 8,975 and therefore amended his claim, requesting to be awarded with the amount of EUR 16,625, plus 5% interest p.a. as from the date in which these payments should be made, composed of: - EUR 11,025 as outstanding amount from the termination agreement; - EUR 5,600 as outstanding additional fees. 10. On 29 July 2014, the parties concluded a settlement agreement (hereinafter: the settlement agreement) which reads as follows: 1. Parties agreed, that Employer had terminated the employment relationship created with Employee on mutual consent. 2. Parties agree that [the Respondent] owed to [the Claimant] net amount of salaries, bonuses and interest/accessory: Principal Obligation : EUR. Interests/Accessory : EUR 3. The Parties agree, that [the Respondent] pays the following net amount in three instalments: EUR until 15 th August EUR until 30 th September EUR until 15 th November Should the aforementioned payments not be made within the agreed deadlines, [the Respondent] will pay to [the Claimant] an additional fine correspondent to 10% of the contract, i.e EUR. 11. On 20 October 2014, the Claimant informed FIFA that he had only received a payment of EUR 4, on 19 August 2014 from the settlement agreement. In view of the above, and in particular considering clause 4 of the settlement agreement, the Claimant considers that an amount of EUR 12, remains outstanding. Notwithstanding the above, and stressing on the Respondent s bad faith, the Claimant requests to be awarded with EUR 26,900 plus 5% interest p.a. as from the date in which these payments should be made. 12. On 25 March 2015, the Respondent acknowledged, via a correspondence sent to FIFA, a debt of EUR 9,300, corresponding to EUR 8,000 as principal obligation and EUR 1,300 as additional fine stipulated in the settlement agreement. 13. In his final comments, the Claimant reiterates his previous argumentation but only claims the amounts he claimed in his first petition, this is, EUR 25,600 plus 5% interest p.a. as from the date in which these payments should be made. II. Considerations of the DRC judge Player A, country B / Club C, country D 3

4 1. First, 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 7 January Consequently, the 2012 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 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 conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2015), he is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a player from country B and a club from country D. 3. Moreover, and in accordance with art. 24 par. 2 lit. i) of the 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 CHF 100, Furthermore, the DRC judge analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations (edition 2015), and considering that the present matter was submitted to FIFA on 7 January 2013, the 2012 edition of said Regulations (hereinafter: the Regulations) is applicable to the present matter as to the substance. 5. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In doing so, he started by acknowledging the above mentioned facts of the case as well as the documentation contained in the file. However, the DRC judge emphasized that in the following considerations he will refer only to facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand. 6. In this respect and first of all, the DRC judge acknowledged that, on 5 July 2012, the Claimant and the Respondent concluded an employment contract valid as of 6 July 2012 until 30 June Furthermore, the DRC judge observed that on 6 February 2013, the parties decided to terminate their contractual relationship in exchange for the payment to the Claimant of EUR 20, Equally, the DRC judge took note that, on 31 May 2014, the parties signed a settlement agreement which reads as follows: Player A, country B / Club C, country D 4

5 1. Parties agreed, that Employer had terminated the employment relationship created with Employee on mutual consent. 2. Parties agree that [the Respondent] owed to [the Claimant] net amount of salaries, bonuses and interest/accessory: Principal Obligation : EUR. Interests/Accessory : EUR 3. The Parties agree, that [the Respondent] pays the following net amount in three instalments: EUR until 15 th August EUR until 30 th September EUR until 15 th November Should the aforementioned payments not be made within the agreed deadlines, [the Respondent] will pay to [the Claimant] an additional fine correspondent to 10% of the contract, i.e EUR. 9. In continuation, the DRC judge observed that it is uncontested between the parties that the Respondent did not comply with the settlement agreement and only made a payment on 19 August In this respect, the DRC noted that the Claimant acknowledges receipt of a payment of EUR 4, whereas the Respondent considers having paid an amount of EUR 5,000; however, the Respondent did not submit any evidence in support of its assertion. Therefore, and after referring to the content of art. 12 par. 3 of the Procedural Rules, the DRC judge held that the Respondent had failed to satisfactorily carry the burden proof and concluded that an amount of EUR 4, had been paid on 19 August On account of the aforementioned consideration, the DRC judge established that the Respondent had failed to pay to the Claimant the total amount of EUR 8, from the settlement agreement and that, consequently, by virtue of the legal principle of pacta sunt servanda, the Respondent is liable to pay the Claimant the amount of EUR 8, In addition, taking into consideration the Claimant s claim as well as the content of clause 3 of the settlement agreement, the DRC judge decided that the Respondent had to pay default interest at a rate of 5% as follows: a. 5% p.a. as of 16 August 2014 on the amount of EUR 38.88; b. 5% p.a. as of 1 October 2014 on the amount of EUR 4,000; c. 5 % p.a. as of 16 November 2014 on the amount of EUR 4, In continuation, the DRC judge reverted to the content of the abovementioned clause 4 of the settlement agreement signed on 31 May 2014 and outlined that the Respondent failed to pay to the Claimant, within the stipulated deadline, the amounts as agreed upon in the settlement agreement. Consequently, the DRC judge concluded that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay the Player A, country B / Club C, country D 5

6 Claimant the amount of EUR 1,300 which was contractually agreed as a penalty fee in case of any delay in payment by the Respondent. 13. Subsequently, the DRC judge analysed the Claimant s additional request to compensation based on the Respondent s bad faith. In this regard, the DRC judge deemed it appropriate to point out that the request for said compensation presented by the Claimant had no legal or regulatory basis and pointed out that no corroborating evidence had been submitted that demonstrated or quantified the damage suffered. 14. The DRC judge concluded his deliberations in the present matter by establishing that any further claims filed by the Claimant are rejected. III. Decision of the DRC judge 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 8, plus 5% interest p.a. until the date of effective payment as follows: d. 5% p.a. as of 16 August 2014 on the amount of EUR 38.88; e. 5% p.a. as of 1 October 2014 on the amount of EUR 4,000; f. 5 % p.a. as of 16 November 2014 on the amount of EUR 4, In the the event that the amount due to the Claimant in accordance with the above-mentioned point 2 is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 4. The Respondent is ordered to pay to the Claimant a penalty fee in the amount of EUR 1,300, within 30 days as from the date of notification of this decision. 5. In the event that the amount due to the Claimant in accordance with the above-mentioned point 4 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. 6. Any further claim lodged by the Claimant is rejected. 7. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are to be made and to notify the DRC judge of every payment received. Player A, country B / Club C, country D 6

7 Note relating to the motivated decision (legal remedy): According to article 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 Lausanne Switzerland Tel: Fax: info@tas-cas.org For the DRC judge: Markus Kattner Acting Secretary General Encl. CAS Directives Player A, country B / Club C, country D 7