F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision 21 September 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 21 September 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

John Bramhall (England), member

Johan van Gaalen (South Africa), member

Pavel Pivovarov (Russia), member

Mohamed Al Saikhan (Saudi Arabia), 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

I. Facts of the case

1. On 16 July 2013, the Player of Country B, Player A (hereinafter: the Claimant), and the Club of Country D, Club C (hereinafter: the Respondent), signed an employment contract valid as from the date of signing until 31 May 2016.

2. According to art. 3 of the employment contract, the Claimant was entitled, inter alia, to receive EUR 1,500,000 for the season 2015/2016 payable in 10 equal monthly instalments of EUR 150,000 as from the 30th day of August 2015 until the 30th day of May 2016.

3. On 13 July 2015, the Claimant and the Respondent signed a “Settlement and Termination Agreement” (hereinafter: the agreement), pursuant to which the “terms and conditions for payment of outstanding allowances from the employment contract” and the “terms and conditions to mutually terminate” the employment contract were agreed upon.

4. More specifically, according to art. 2b of the agreement, the Claimant and the Respondent agreed “that the [Respondent] is obliged to pay the [Claimant] the amount of net EUR 850,000 … instead of net EUR 1,500,000 … as compensation to cancel the employment agreement in case the [Respondent] fulfils its obligations and pays the amounts stated below in time and in full”.

5. In particular, according to the same provision of the agreement, the Respondent had to pay the Claimant EUR 850,000 in 10 monthly instalments of EUR 85,000 on the 30th (28th in February) day of each month from September 2015 to June 2016.

6. Furthermore, according to art. 3 of the agreement, “in case of non payment of one of the instalments stated above for more than 60 days, the agreed amount stated in article 2/b will be annulled and the Parties will go back to the conditions and the amounts payable for the 2015/2016 season in the Employment Agreement dated 16 July 2013 (i.e. EUR 1,500,000) which is referred in the Article 1 of this Agreement”.

7. By letter dated 31 December 2015, the Claimant notified the Respondent that more than 60 days had elapsed since 30 October 2015, when the monthly instalment of EUR 85,000 fell due. Consequently, the Claimant reminded the Respondent that this occurrence had triggered art. 3 of the agreement, according to which the amount stated in art. 2b of the agreement is annulled and the Claimant is entitled to receive the original amount of EUR 1,500,000 for the 2015/2016 season. With the same letter, the Claimant gave the Respondent 10 days to proceed with the payment of EUR 1,500,000.

8. By letter dated 21 January 2016 addressed to the Respondent, the Claimant reiterated the above, arguing that, by then, EUR 750,000 (i.e. the monthly EUR 150,000 from August 2015 to December 2015 in accordance with the employment contract) had fallen due whereas he had received EUR 170,000 (i.e. two payments of EUR 85,000) only. Therefore, the Claimant put the Respondent in default of payment of EUR 580,000 giving the latter 10 days to pay.

9. On 8 February 2016, the Claimant lodged a claim against the Respondent in front of FIFA requesting that the Respondent be ordered to pay the total amount of EUR 1,330,000, consisting of EUR 130,000 for September 2015 and EUR 150,000 per month as from October 2015 to May 2016. Following further payments received from the Respondent and upon FIFA’s request to inform about the up-to-date position in the matter, the Claimant adapted his claim (cf. point I./17. below).

10. The Claimant argued that, after signing the agreement with the Respondent, the latter only paid the first instalment of EUR 85,000 due on 30 September 2015 in a timely manner. The Claimant further argued that the second payment of EUR 85,000 due on 30 October 2015 only arrived on 4 January 2016, thus triggering art. 3 of the agreement, as more than 60 days had elapsed from the date on which the payment fell due. Therefore, the Claimant argued that he was entitled to receive the original monthly instalment established in the employment contract, i.e. EUR 150,000.

11. In its reply, the Respondent argued that it had paid the first instalment of EUR 85,000 on 30 September 2015. With regard to the date of payment of the second instalment, due on 30 October 2015, the Respondent explained that, due to internal proceedings related to the election of the new president and the takeover by a new management, it could not proceed to pay the instalment for October 2015 on the due date. The Respondent further explained that, in order not to trigger art. 3 of the agreement, it had prepared a ‘protocol’ to be agreed upon and signed by the Claimant, according to which the payments due on 30 October 2015, 30 November 2015 and 30 December 2015 were shifted to two instalments of EUR 120,000 and EUR 135,000 to be paid on 30 January and 28 February 2016.

12. In continuation, the Respondent argued that, since it could not get the written consent of the Claimant on the above-mentioned ‘protocol’, it had to proceed to the payment of the EUR 85,000 on the last day of the time limit. The Respondent further argued that it had made the payment on 31 December 2015, and not on 4 January 2016 as the Claimant stated, and that thus it had allegedly respected the deadline of 60 days from when it was due, i.e. 30 October 2015. In support of its claim, the Respondent submitted a non-translated bank statement of the payment which it was allegedly issued on 31 December 2015.

13. In addition, the Respondent pointed out that it had paid 2 further instalments of EUR 85,000 each.

14. For these reasons, the Respondent concluded that it had not breached the agreement and that it was undertaking to continue to pay the Claimant EUR 85,000 per month according to the agreement. Consequently, the Respondent asked that the Claimant’s claim be rejected.

15. In this respect, the Respondent held that it made further payments to the Claimant, in total 6, and submitted bank statements of 5 payments of EUR 85,000 with value dates of 29 March 2016, 29 April 2016, 27 May 2016, 23 June 2016, and 25 July 2016. The Respondent alleged having made a further payment of EUR 85,000 on 24 August 2016.

16. In relation to the above and further to FIFA’s request, the Claimant acknowledged all the above-described payments in the total amount of EUR 850,000 made by the Respondent but insisted on his claim that he was entitled to the original monthly instalment of EUR 150,000 in accordance with art. 3 of the agreement and given the Respondent’s late remittance of the October 2015 instalment.

17. In consideration of that, the Claimant claimed the total amount of EUR 650,000, consisting of 10 instalments of EUR 65,000 plus interest of 5% p.a. as follows:

a. Instalment of 30 October 2015: 5% on EUR 150,000 as from 31 October 2015 until 4 January 2016; 5% on EUR 65,000 as from 4 January 2016 until effective payment;

b. Instalment of 30 September 2015: 5% on EUR 65,000 as from 1 October 2015 until effective payment;

c. Instalment of 30 August 2015: 5% on EUR 150,000 as from 31 August 2015 until 1 February 2016; 5% on EUR 65,000 as from 1 February 2016 until effective payment;

d. Instalment of 30 November 2015: 5% on EUR 150,000 as from 1 December 2015 until 1 February 2016; 5 % on EUR 65,000 as from 1 February 2016 until effective payment;

e. Instalment of 30 December 2015: 5% on EUR 150,000 as from 31 December 2015 until 30 March 2016; 5% on EUR 65,000 as from 30 March 2016 until effective payment;

f. Instalment of 30 January 2016: 5% on EUR 150,000 as from 31 January 2016 until 2 May 2016; 5% on EUR 65,000 as from 2 May 2016 until effective payment;

g. Instalment of 28 February 2016: 5% on EUR 150,000 as from 29 February 2016 until 27 May 2016; 5% on EUR 65,000 as from 27 May 2016 until effective payment;

h. Instalment of 30 March 2016: 5% on EUR 150,000 as from 31 March 2016 until 23 June 2016; 5% on EUR 65,000 as from 23 June 2016 until effective payment;

i. Instalment of 30 April 2016: 5% on EUR 150,000 as from 1 May 2016 until 25 July 2016; 5% on EUR 65,000 as from 25 July 2016 until effective payment;

j. Instalment of 30 May 2016: 5% on EUR 150,000 as from 31 May 2016 until 24 August 2016; 5% on EUR 65,000 as from 24 August 2016 until effective payment.

18. The Respondent, for its part, reiterated that its payment on 31 December 2015 was timely and compliant with the agreement and that, in consideration of its further payments of the various EUR 85,000 instalments, it had completed the payment of all the amounts according to the agreement.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at stake. In this respect, the DRC took note that the present matter was submitted to FIFA on 8 February 2016. Consequently, the DRC concluded that the 2015 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 members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016) the DRC is competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension between a Player of Country B and a Club of Country D.

3. Furthermore, the DRC 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, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations (edition 2016) and considering that the present claim was lodged in front of FIFA on 8 February 2016, the 2015 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 and the applicable regulations having been established, the members of 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 acknowledged that, following the conclusion of an employment contract on 16 July 2013, the Claimant and the Respondent signed a termination agreement, on 13 July 2015, by means of which they regulated their financial relationship and which provided for a specific clause to be applied in case the Respondent failed to remit the agreed instalments to the Claimant within the relevant time limits.

6. More specifically, the members of the Chamber observed that, by means of said agreement, the parties had agreed to a total remuneration of EUR 850,000 to be paid by the Respondent in favour of the Claimant, in lieu of the EUR 1,500,000 provided in the original employment contract for the 2015/2016 season. According to said agreement, the Respondent undertook to pay the Claimant EUR 850,000 in 10 monthly instalments of EUR 85,000 on the 30th (28th in February) day of each month from September 2015 to June 2016.

7. Equally, the Chamber noted that the agreement established in its art. 3 that “in case of non payment of one of the instalments stated above for more than 60 days, the agreed amount stated in article 2/b will be annulled and the Parties will go back to the conditions and the amounts payable for the 2015/2016 season in the Employment Agreement dated 16 July 2013 (i.e. EUR 1,500,000) […]”.

8. In continuation, the members of the Chamber noted that according to the Claimant, the Respondent paid the 30 October 2015 instalment more than 60 days after the relevant time limit had elapsed, which triggered the application of art. 3 of the agreement. The Claimant maintained that, therefore, he is entitled to receive the amount payable for the 2015/2016 season in accordance with the employment contract, i.e. EUR 150,000 per month as from the 30th day of August 2015 until the 30th day of May 2016, totalling EUR 1,500,000.

9. The Chamber took into account that the Respondent, for its part, rejected the claim stating that it remitted the 30 October 2015 instalment to the Claimant on 31 December 2015 in a timely manner and in compliance with the agreement, contesting that the application of art. 3 of the agreement was triggered. In addition, the Respondent held that it had completed the payment of all the amounts according to the agreement.

10. Having said this, the Chamber concluded that the 60 days established in art. 3 of the agreement with respect to the instalment due on 30 October 2015 elapsed on 29 December 2015. In this respect, the DRC pointed out that it is undisputed and acknowledged by the Respondent itself that it remitted the 30 October 2015 instalment only on 31 December 2015.

11. As a consequence, the members of the Chamber established that the Respondent paid the 30 October 2015 instalment more than 60 days of expiry of the relevant deadline, which fact triggered the consequences regarding late payment envisaged in art. 3 of the agreement.

12. Therefore, the Chamber decided that the Claimant was entitled to receive the amount of EUR 1,500,000 from the Respondent in accordance with the terms of the employment contract for the 2015/2016 season, i.e. EUR 150,000 per month as from the 30th day of August 2015 until the 30th day of May 2016.

13. In light of the above, and bearing in mind that the Respondent undisputedly already paid the Claimant the amount of EUR 850,000, the DRC decided that, in accordance with the general legal principle of “pacta sunt servanda”, the Respondent is liable to pay the amount of EUR 650,000 to the Claimant.

14. In addition, taking into account the Claimant’s claim, the Chamber decided to award the Claimant interest of 5% p.a. as of the day following the day on which the relevant payments fell due in accordance with the employment contract until the date of effective payment.

15. The Chamber concluded its deliberations in the present matter by rejecting any further claim of the Claimant.

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, within 30 days as from the date of notification of this decision, the amount of EUR 650,000, plus 5% interest p.a. as follows:

a. 5% p.a. as from 31 October 2015 until 31 December 2015 on the amount of EUR 150,000;

b. 5% p.a. as from 31 December 2015 until the date of effective payment on the amount of EUR 65,000;

c. 5% p.a. as of 1 October 2015 until the date of effective payment on the amount of EUR 65,000;

d. 5% p.a. as from 31 August 2015 until 29 January 2016 on the amount of EUR 150,000;

e. 5% p.a. as from 29 January 2016 until the date of effective payment on the amount of EUR 65,000;

f. 5% p.a. as from 1 December 2015 until 1 February 2016 on the amount of EUR 150,000;

g. 5% p.a. as from 1 February 2016 until the date of effective payment on the amount of EUR 65,000;

h. 5% p.a. as from 31 December 2015 until 29 March 2016 on the amount of EUR 150,000;

i. 5% p.a. as from 29 March 2016 until the date of effective payment on the amount of EUR 65,000;

j. 5% p.a. as from 31 January 2016 until 29 April 2016 on the amount of EUR 150,000;

k. 5% p.a. as from 29 April 2016 until the date of effective payment on the amount of EUR 65,000;

l. 5% p.a. as from 29 February 2016 until 27 May 2016 on the amount of EUR 150,000;

m. 5% p.a. as from 27 May 2016 until the date of effective payment on the amount of EUR 65,000;

n. 5% p.a. as from 31 March 2016 until 23 June 2016 on the amount of EUR 150,000;

o. 5% p.a. as from 23 June 2016 until the date of effective payment on the amount of EUR 65,000;

p. 5% p.a. as from 1 May 2016 until 25 July 2016 on the amount of EUR 150,000;

q. 5% p.a. as from 25 July 2016 until the date of effective payment on the amount of 65,000;

r. 5% p.a. as from 31 May 2016 until 24 August 2016 on the amount of EUR 150,000;

s. 5% p.a. as from 24 August 2016 until the date of effective payment on the amount of 65,000.

3. In the event that the aforementioned sum plus interest 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. Any further request filed by the Claimant is rejected.

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 Dispute Resolution Chamber of every payment received.

*****

Note relating to the motivated decision (legal remedy):

According to art. 58 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 (CAS)

Avenue de Beaumont 2

CH-1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl.: CAS directives