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 13 July 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 13 July 2017,

in the following composition:

Geoff Thompson (England), Chairman

Theo van Seggelen (Netherlands), member

Mario Gallavotti (Italy), 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

between the parties

I. Facts of the case

1. On 22 July 2015, the Player of Country B, Player A (hereinafter: Claimant) and the Club of Country D, Club C (hereinafter: Respondent) signed an employment contract (hereinafter: contract) valid for the 2015-2016 sporting season.

2. By means of an agreement dated “6/07/2015” (hereinafter: agreement), the Claimant and the Respondent agreed that the Claimant was allowed to negotiate and sign a contract with any other club as from “this 16 January 2016”.

3. According to the second paragraph of the agreement, the parties agreed that “In case of agreement and signing between Player A and this new club, Club C will pay immediately to Player A the amount of 20,000 USD Net in cash for having terminated his contract with Club C. And this amount will be paid 20 working days after signing this termination paper. And the punishment for not paying on time is that the amount will rise up to 40,000 USD. This amount will be paid in once and full.”

4. According to the third paragraph of the agreement, the parties agreed that “In that case, both parties confirms that, they will terminate their contract without any claim from each other.”

5. By means of an agreement named “Trilateral Agreement” (hereinafter: trilateral agreement”), which bears the date of 16 July 2016, the Claimant, the Respondent and the Club of Country D, Club E agreed on inter alia the following terms and conditions:

 Art. 3 par. 2 and 3: “… [the Respondent] and [the Claimant] terminated their existing contract just in case [the Claimant] enters into a new valid employment contract with [Club E] for the 2nd half season 94-95” and [the Respondent] and [the Claimant] “cleared all their financial issues and [the Claimant] confirms that he has received all his payments and salaries from the club and confirms that any claim before and after signing this agreement from his side against [the Respondent] will be considered as null and void in any court.”

 Art. I.1.: “[The Respondent] terminated its existing contract with [the Claimant] just in case [the Claimant] concludes a new employment contract with [the Claimant] within the ONE day after termination agreement date (…).”

 Art. II.: “[Club E] shall conclude an employment contract with [the Claimant] within the same day of the termination contract of the Claimant with [the Respondent], the draft of which is already emailed to the PLAYER’S agent email and would acknowledge the receipt of the contract draft and agreed on all provisions of it.”

 According to art. IV. of the trilateral agreement, it comes into force by the time of its signing and its validity is conditioned by the signature of a valid employment contract by and between the Claimant and Club E. “If the transfer of [the Claimant] does not take place because of the fact that the aforementioned condition is not fulfilled, this Agreement shall be null and void; in such case the Parties shall have no claim for damages or any form of compensation against each other. In case [the Claimant] does not come to an agreement and/or sign the final contract with Club E, [the Claimant] still belongs to [the Respondent]”.

6. By means of two default notices respectively dated 21 May 2016 and 11 November 2016, the Claimant requested the Respondent to pay him USD 40,000 on the basis of the agreement, allegedly signed on 16 January 2016, and the signature of an agreement between himself and Club E on 16 July 2016.

7. On 12 December 2016, the Claimant lodged a claim before FIFA against the Respondent and requested that the latter be ordered to pay him USD 40,000, plus interest in the rate fixed by the European Central Bank for refinancing, applicable during the concerned period, increased by two points, as from 16 February 2016 or at least from 21 May 2016.

8. According to the Claimant, considering the financial difficulties faced by the Respondent in 2015, the Claimant and the Respondent signed the agreement authorizing him to look for a new club as from 16 January 2016 as well as establishing a compensation in the amount of USD 20,000 for the termination of the contract. Moreover, the agreement established that, in case of default, the Respondent had to pay him USD 40,000.

9. Moreover, the Claimant underlined that although the trilateral agreement indicates as date 16 July 2016, it was signed on 16 January 2016.

10. In continuation, the Claimant explained that although all parties thereby confirmed the termination of the contract and the Claimant’s recruitment by Club E, the Respondent never paid him the amount of USD 40,000 and did not react to his default notices.

11. In spite of having been invited to do so, the Respondent has not responded to the claim.

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 hand. In this respect, it took note that the present matter was submitted to FIFA on 12 December 2016. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: Procedural Rules) are 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 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016) 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 of Country B and a Club of 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 2016), and considering that the present claim was lodged on 12 December 2016, the 2016 edition of said regulations (hereinafter: 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 acknowledged that the Claimant and the Respondent signed an employment contract on 22 July 2015 valid for the 2015-2016 season. The Chamber also took note that the parties, subsequently, signed an agreement, by means of which the Respondent authorized the Claimant to negotiate and sign an employment contract with a third club as from 16 January 2016. The agreement further established that in the event of the Claimant signing a contract with a new club, the Respondent would pay the amount of USD 20,000 to the Claimant, which amount would be increased up to USD 40,000 if the Respondent would be in delay of payment.

6. The Chamber took note that the Claimant lodged a claim against the Respondent, requesting to be awarded inter alia the amount of USD 40,000 based on the agreement.

7. Subsequently, the DRC took into account that the Respondent, for its part, has not replied to the claim of the Claimant, in spite of having been invited to do so. In this way, the members of the DRC considered that the Respondent renounced its right to defence.

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

9. In this respect, the Chamber took note that, according to Claimant, the Respondent authorized him, by means of the agreement, to negotiate and find a new club, considering the financial difficulties faced by the Respondent. Moreover, the Claimant held that the Respondent committed itself to pay him an amount for the termination of the contract, in case the Claimant indeed concluded a new employment contract with another club.

10. Having said this, the DRC acknowledged that, in accordance with the agreement provided by the Claimant, the Respondent indeed authorized the Claimant to sign an employment contract with another club and also was obliged to pay to the Claimant the amount of USD 20,000 for the termination of the contract, in case he did sign an employment contract with a new club.

11. In addition, the agreement established that in case the Respondent failed to pay the amount of USD 20,000 within the agreed deadline, the Respondent would be responsible to pay the amount of USD 40,000 to the Claimant.

12. In this context, the DRC considered that it remained undisputed that the Claimant concluded an employment contract with a new club, Club E.

13. Notwithstanding the above, the members of the DRC reverted to the further documentation provided by the Claimant.

14. In this context, the Chamber turned its attention to the trilateral agreement concluded by the Claimant, the Respondent and Club E and dated 16 July 2016. In particular, the DRC took note that art. 3 paras. 2 and 3 of the trilateral agreement established inter alia that the Respondent and the Claimant “cleared all their financial issues and [the Claimant] confirms that he has received all his payments and salaries from the club and confirms that any claim before and after signing this agreement from his side against [the Respondent] will be considered as null and void in any court.”

15. Furthermore, the members of the Chamber referred to the condition precedent included in art. IV. of the trilateral agreement, in accordance with which inter alia its validity is conditioned by the signature of a valid employment contract by and between the Claimant and Club E. Bearing in mind the considerations under numbers I./6. and II./12. above, the Chamber concluded that such condition was fulfilled and that the trilateral agreement had come into force.

16. Having established the above, the DRC took into account that in accordance with art. 3 paras 2 and 3 of the trilateral agreement, the Claimant expressly acknowledged having received all financial dues from the Respondent and confirmed that any claim against the Respondent should be considered null and void, before and after the signature of the trilateral agreement.

17. On account of all the above, in particular the preceding consideration, the members of the DRC decided that the claim of the Claimant must be rejected.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Player A, is rejected.

*****

Note relating to the motivated decision (legal remedy):

According to article 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

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 Dispute Resolution Chamber:

Marco Villiger

Chief Legal & Integrity Officer

Encl. CAS Directives