Decision of the. Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 18 March 2016, in the following composition: Geoff Thompson (England), Chairman Philippe Piat (France), member John Bramhall (England), member Theodore Giannikos (Greece), member Zola Majavu (South Africa), 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 6 July 2012, the Player A from country B (hereinafter: the Claimant), and the Club C from country D (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) valid as from the date of signature until 31 December 2014, i.e. for 2 years and 6 months. 2. According to art. 7 of the contract, the Claimant was entitled to receive EUR 25,000 as monthly salary as well as several match bonuses. 3. Also on 6 July 2012, the Claimant, the Respondent and the Company X (hereinafter: the Company) signed an image rights agreement (hereinafter: the agreement), valid for the same period of time as the contract, which only dealt with the obligations of the 3 signing parties related to the player s image rights. According to the agreement, the company undertook to provide the Claimant, inter alia, with the following amounts: - EUR 2,000,000 payable within 15 days after the signature of the contract; - EUR 1,850,000 payable before 10 October 2012; - EUR 1,850,000 payable before 10 April 2013; - EUR 1,850,000 payable before 10 October 2013; - EUR 1,850,000 payable before 10 April 2014; - EUR 1,850,000 payable before 10 October In addition, art. 4.4 of the agreement stipulated that in the event of termination of this Agreement, the above payments shall be pro-rated on a six monthly basis assuming this to be a period of 183 days and any advance payments made by the Company shall be repaid to the Company by the [Claimant]. 5. On 29 January 2014, the Claimant and the Respondent signed an employment contract termination agreement, in which they agreed to terminate the employment contract on that date. The Respondent also undertook to pay the following amounts to the Claimant : - EUR 100,000 net of all taxes, payable by no later than 20 February 2014 by way of salary ; - USD 8,000 gross of country D taxation, payable by no later than 20 February 2014 by way of bonus. 6. Also on 29 January 2014, the Claimant, the Respondent and the Company signed a personal portrait rights termination agreement (hereinafter: the image rights termination agreement), in which they agreed to terminate the agreement on that date. The Company agreed to pay the amount of EUR 2,233,000 net of all taxes to Player A, country B / Club C country D Page 2 of 8

3 the player by no later than 20 February 2014, of which EUR 1,000,000 were already paid on 13 January The Claimant acknowledged having received the amount of EUR 1,000,000 on 13 January In addition, art. 4 of the termination of the agreement established that in the event of the Company failing to make all or any part of the Termination Payment on or before the payment Date, the Company shall pay to the [Claimant] (in addition to the Termination Payment) liquidated damages amounting to 5 % of any shortfall between the Termination Payment and any payment(s) that have been made in advance of the Payment Date. 8. On 28 May 2015, the Claimant contacted the Respondent in writing, requesting the fulfilment of the employment contract termination agreement and the payment of EUR 100,000 net and USD 8,000 gross at the latest on 3 June 2015; otherwise he would refer the case to FIFA. 9. Also on 28 May 2015, the Claimant sent another reminder to the Respondent, requesting the fulfilment of the termination of the agreement and the payment of the total amount of EUR 1,294,650, at the latest 8 June 2015, as follows: - EUR 1,233,000 corresponding to the rest value of the image rights termination agreement; - EUR 61,650 corresponding to the liquidated damages, being 5% of the shortfall between the termination payment of EUR 2,233,000 and all payments made to [the player] in advance of 20 February 2014, i.e. EUR 1,000,000 (cf. point I.7 above). 10. On 2 June 2015, the Respondent replied to the aforementioned letters of the Claimant, informing that the requested money had been transferred on the Claimant s bank account. The Respondent enclosed 2 bank receipts, dated 2 June 2015, of EUR 100,000 and USD 8, On the same day, the Claimant confirmed to the Respondent that he received on his bank account EUR 100,000. However, the Claimant claimed that he was still waiting for the payment of USD 8,000 and EUR 1,233,000 net, corresponding to the rest value of the image rights termination agreement. 12. On 8 June 2015, the Respondent informed the Claimant that it could not transfer the requested amount to his bank account since according to administrative provisions of [its] company, [it has] no right to transfer huge amount of money without permission from both Deputy Chief Financial and Chief Financial. However, [its] Financial Chief can t work as usual, because she is on maternity leave ( ). 13. On the same day, the Claimant replied to the Respondent that the amount of USD 8,000 had not been transferred on his bank account yet; he also requested to be informed of the exact date of the payment of the outstanding amounts. Player A, country B / Club C country D Page 3 of 8

4 14. On 9 June 2015, the Respondent explained that the financial staff of the Respondent allegedly could not transfer any foreign currency during the absence of Chief Financial, who allegedly promised to be back work on 3rd September On 11 June 2015, the Claimant sent another reminder, questioning how could it be that the Respondent can allegedly not transfer any amounts in a foreign currency in the absence of the Chief Financial if on 2 June 2015 he did receive EUR 100,000 from the Respondent (cf. point I.11 above). Furthermore, the Claimant agreed to postpone any legal actions at FIFA if the Respondent paid him EUR 500,000 in the following 7 days, to the same account they paid the EUR 100,000. He also reminded the Respondent that the amount of USD 8,000 had not been received yet. 16. On 13 June 2015, the Respondent replied that it was allegedly still waiting for the return of Chief Financial to make the payment and asked for the bank account details of the Claimant to transfer the amount of USD 8,000, since the bank allegedly informed the club that the bank details of the Claimant were not correct. 17. On 1 July 2015, the Claimant provided the Respondent with his bank account details as requested. 18. On 17 July 2015, the Claimant sent one more reminder, requesting the payment within 10 days of the outstanding amounts of USD 8,000 and EUR 1,233,000; otherwise, he would refer the case to FIFA. 19. On 3 August 2015, the Claimant lodged a claim in front of FIFA against the Respondent, requesting to be awarded the total amount of EUR 1,294,650 plus USD 8,000 as follows: a) USD 8,000 corresponding to the residual value pertaining to the employment contract termination agreement ; b) EUR 1,233,000 corresponding to the residual value pertaining to the image rights termination agreement; c) EUR 61,650 as liquidated damages on the basis of art. 4 of the image rights termination agreement; d) further interest at the discretion of the DRC ; e) Sporting and/or disciplinary sanctions on the club. 20. 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 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 Player A, country B / Club C country D Page 4 of 8

5 respect, it took note that the present matter was submitted to FIFA on 3 August Consequently, the Rules governing the procedures of the Claimants Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: the 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 2015) the Dispute Resolution Chamber in principle is competent to an employment-related dispute with an international dimension between a player from country B and a club from country D. 3. Before entering the analysis of the substance of the matter, the DRC, considering its obligation to examine ex officio any preliminary issue which might have an impact on the admissibility of the claim, deemed it appropriate to examine if the present claim, or any part of it, could be possibly inadmissible in the scope of the FIFA Regulations. 4. In this respect, the members of the Chamber focused their attention on the specific part of the Claimant s claim (cf. point I.19 a) and b) above) regarding payments in connection to the image rights agreement (cf. point I.3 above) and its relevant termination (cf. point I.6 above), apparently signed by the parties on 6 July 2012 and 29 January 2014, respectively. In this particular context, the Chamber had to verify whether, for formal reasons, it was competent to deal with this specific component or not. In fact, it remains that this part of the claim could possibly not be considered by the Chamber due to its lack of competence to deal with disputes related to image rights. 5. At this point, the Chamber deemed it appropriate to remind the parties of wording of art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2015), according to which: Without prejudice to the right of any player or club to seek redress before a civil court for employment-related disputes, FIFA is competent to hear: [ ] b) employment-related disputes between a club and a player of an international dimension [ ] (emphasis added). Consequently, as per the clear wording of the Regulations on the Status and Transfer of Players (edition 2015), the DRC is not competent to deal with disputes related to image rights. 6. Notwithstanding the foregoing, the Chamber went on to analyse the content of the image rights agreement concluded by the parties on 6 July 2012 (cf. point I.3 above) in order to verify whether it contained any elements of an employment contract, linked to the services of the Claimant as a football player. After a careful analysis of Player A, country B / Club C country D Page 5 of 8

6 its content, the Chamber could conclude that the image rights agreement concluded between the Claimant and the Respondent referred exclusively to rights and obligations related to the player s image and not to his services as a football player or his employment relationship to the club. 7. As a consequence, the Chamber concluded that it lacked competence to deal with the Claimant s claims insofar as it was related to the image rights agreement of 6 July 2012 as well as to its relevant termination agreement of 29 January Therefore, such specific requests of the Claimant contained in points I.19 a) and b) were to be considered as inadmissible. The Chamber concluded its reasoning by stating that the Claimant s other requests made in points I.19 c), d) and e) will be further analysed as to their substance. 8. Having established the foregoing, the Chamber analysed which edition of the 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 2015), and considering that the present claim was lodged on 3 August 2015, the 2015 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 9. 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. 10. In this respect and first of all, the members of the Chamber acknowledged that following the conclusion of an employment contract on 6 July 2012, the Claimant and the Respondent had concluded an employment contract termination agreement on 29 January 2014, by means of which they agreed that the Respondent would pay to the Claimant the amount of EUR 100,000 net of all taxes, payable by no later than 20 February 2014 by way of salary and the amount of USD 8,000 payable by no later than 20 February 2014 by way of bonus. 11. Subsequently, the Chamber noted that the Claimant contacted FIFA on 3 August 2015, indicating that the Respondent had not fulfilled its obligations as established in the employment contract termination agreement, since it had only paid the Claimant the amount of EUR 100,000, and that USD 8,000 still remained outstanding. Player A, country B / Club C country D Page 6 of 8

7 12. In continuation, the members of the Chamber 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 Chamber considered that the Respondent renounced its right of defence and, thus, has not contested the allegations of the Claimant. 13. Furthermore, as a consequence of the aforementioned 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 documents already on file, in other words, upon the statements and documents presented by the Claimant. 14. Having said this, the Chamber first turned its attention to the Claimant s claim based on the employment contract termination agreement. According to the Claimant, the Respondent owes him the amount of USD 8, On account of the aforementioned considerations, the Chamber established that the Respondent had failed to pay to the Claimant the amounts as agreed upon in the termination agreement, totalling USD 8,000. Consequently, the Chamber concluded that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay the Claimant the amount of USD 8, In addition, taking into consideration the Claimant s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the above-mentioned amount of USD 8,000 as of 3 August 2015 until the date of effective payment. 17. In conclusion, the Chamber decided that any further claim of the Claimant is rejected and that the Claimant s claim is partially accepted insofar as it is admissible. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted, insofar as it is admissible. 2. The Respondent, Club C, is ordered to pay to the Claimant, Player A, within 30 days as from the date of notification of this decision, the amount of USD 8,000 plus 5 % interest p.a. as from 3 August 2015 until the date of effective payment. 3. If the aforementioned amount plus interest is not paid within the above-mentioned time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 4. Any further claims lodged by the Claimant, Player A, are rejected. Player A, country B / Club C country D Page 7 of 8

8 5. The Claimant, Player A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the entire 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 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 Dispute Resolution Chamber: Marco Villiger Deputy Secretary General Encl: CAS directives Player A, country B / Club C country D Page 8 of 8