F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2016-2017) – fifa.com – atto non ufficiale – Decision 7 April 2016

Decision of the

Dispute Resolution Chamber (DRC) judge

passed in Zurich, Switzerland, on 7 April 2016,

by Philippe Diallo (France), DRC judge,

on the claim presented by the player,

Player A, country B

as Claimant

against the club,

Club C (formerly known as Club D), country E

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 18 January 2013, Player A from country B (hereinafter: the Claimant), and Club C from country E (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) valid as from 17 January 2013 to 31 May 2016, i.e. for 3 years and 4 months.

2. On 30 August 2013, the Claimant and the Respondent signed a “mutual termination of employment contract”, according to which they both “declare and undertake that [they] have no claims or outstanding receivables from each other concerned with the said contract and thus [they] hereby release each other from any further obligations thereunder.”

3. On the same date, the Claimant also signed a “document”, bearing the club’s stamp, according to which he stated: “I have received 29,000 EURO in hand (cash) and 14,500 EURO by cheque on 25.03.2014 as the total amount of the mutual termination agreement dated 30/08/2013 signed between the Player A and Club C. I hereby release Club C from any financial and/or contractual liabilities and obligations by final discharge.”

4. On 4 August 2015, the Claimant contacted the Respondent in writing, requesting the payment of EUR 14,500, which allegedly remained outstanding, since the cheque, dated 25 March 2014, “had not been yet credited” in his bank account.

5. From 24 August 2015 to 16 September 2015, the Claimant and a lawyer allegedly representing the Respondent exchanged several emails, in which the Respondent acknowledged its debt and promised to proceed with the payment of the outstanding amount of EUR 14,500, in 5 instalments of EUR 2,500 and a last one of EUR 2,000, the first of which on 20 September 2015 and the following ones on 20 October 2015, 20 November 2015, 20 December 2015, “January 20th 2015” and “February 20, 2015”.

6. On 21 September 2015, the Claimant sent another email to the Respondent, requesting the payment of the first instalment of EUR 2,500. On 23 September 2015, the Respondent replied to the Claimant that the first payment would be done the week after. On 3 October 2015, the Claimant sent a new email to the Respondent, claiming that “we are done being patient because every promise the president made up to now was not kept! (…) My further actions will be to FIFA.”

7. On 9 October 2015, the Claimant lodged a claim in front of FIFA against the Respondent, requesting to be awarded the unpaid amount of EUR 14,500 as provided by the “mutual termination of employment contract.”

8. In spite of having been invited to do so, the Respondent did not provide its position on the Claimant’s claim.

II. Considerations of the DRC judge

1. First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: the judge or the DRC judge) analysed whether he was competent to deal with the matter at stake. In this respect, the judge referred to art. 21 par. 1 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules). The present matter was submitted to FIFA on 9 October 2015. Therefore, the DRC judge concluded that the edition 2015 of the Procedural Rules was applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the judge referred to art. 3 par. 1 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 b) of the Regulations on the Status and Transfer of Players (edition 2015; hereinafter: the Regulations), the DRC judge shall adjudicate on an employment-related dispute with an international dimension, between a player from country B and a club from country E.

3. Furthermore, the judge analysed which 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 (editions 2014 and 2015), and considering that the present claim was lodged on 9 October 2015, the 2015 edition of said regulations is applicable to the matter at hand as to the substance.

4. His competence and the applicable regulations having been established, the judge entered into the substance of the matter. In doing so, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand.

5. In this respect and first of all, the DRC judge acknowledged that following the conclusion of an employment contract on 18 January 2013, the Claimant and the Respondent had concluded a “mutual termination of employment contract” on 30 August 2013, by means of which they both “declare and undertake that [they] have no claims or outstanding receivables from each other concerned with the said contract and thus [they] hereby release each other from any further obligations thereunder.”

6. The DRC judge also took note that on the same date, the Claimant and the Respondent signed a “document”, bearing the club’s stamp, according to which the Claimant stated to have “received 29,000 EURO in hand (cash) and 14,500 EURO by cheque on 25.03.2014 as the total amount of the mutual termination agreement dated 30/08/2013”.

7. Subsequently, the DRC judge noted that the Claimant contacted FIFA on 9 October 2015, indicating that the Respondent had not fulfilled its obligations as established in the “document”, since the cheque of EUR 14,500 could not be cashed (cf. point I.4 above).

8. In continuation, the judge highlighted that the Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. In this way, the DRC judge considered that the Respondent renounced its right of defence and, thus, has not contested the allegations of the Claimant.

9. Furthermore, as a consequence of the aforementioned consideration, the judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant.

10. Having said this, the DRC judge turned its attention to the Claimant’s claim, according to which the Respondent owes him the amount of EUR 14,500 since the cheque of the said amount had never been credited. Furthermore, the DRC judge noted that in response to the Claimant’s default notices (cf. points I.4 to I.6 above), the Respondent acknowledged that the cheque could not be cashed and consequently its outstanding debt towards the player.

11. On account of the aforementioned considerations, the judge established that the Respondent had failed to pay to the Claimant the amount of EUR 14,500 as agreed upon in the “document” enclosed to the “mutual termination of employment contract.” Consequently, the DRC judge concluded that, in accordance with the general legal principle of “pacta sunt servanda”, the Respondent is liable to pay the Claimant the amount of EUR 14,500.

12. Finally, in accordance with the DRC’s well-established jurisprudence, the DRC judge established that the Claimant must return the cheque dated 30 August 2013 in the amount of EUR 14,500 to the Respondent.

13. The DRC judge concluded his deliberations by establishing that the Claimant’s claim is accepted.

II. Decision of the DRC judge

1. The claim of the Claimant, Player A, is accepted.

2. The Respondent, Club C, has to pay to the Claimant the amount of EUR 14,500, within 30 days as from the date of notification of this decision.

3. In the event that the aforementioned sum 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 limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

4. The Claimant is ordered to return to the Respondent, within 30 days as from the date of notification of this decision, the cheque of EUR 14,500 dated 25 March 2014.

5. 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 DRC judge 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:

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: info@tas-cas.org

For the DRC judge:

Marco Villiger

Deputy Secretary General

Encl: CAS directives