Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 October 2006,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Gerardo Movilla (Spain), member
Joaquim Evangelista (Portugal), member
Mario Gallavotti (Italy), member
Peter Friend (Australia), member
on the claim presented by the
Player P, Country X
as Claimant
against the
club C, Country Y
as Respondent
regarding a contractual dispute arisen between the player and the club.
I.
Facts of the case
1.
In July 2004, the player P (hereinafter: the Claimant) and the club C (hereinafter:
the Respondent) concluded an employment contract which does not stipulate
the period of validity. In addition to this contract, the parties concluded an
Annex on 14 July 2004 stipulating the financial conditions for the period from 20
June 2004 until 21 June 2006 (hereinafter: Annex 1) and a second Annex on 25
July 2005 stipulating the financial conditions for the period from 20 July 2005 until
20 July 2007 (hereinafter: Annex 2).
2.
Annex 1 provides for the first year an allowance of USD 20,000 for the Claimant
plus monthly wages of USD 4,000. Annex 2 provides for the same remuneration
for the first year: a net allowance of USD 20,000 for the costs of moving and USD
4,000 as monthly wages. Both Annexes left out the remuneration for the second
year.
3.
On 10 October 2005, the Claimant lodged a formal complaint at FIFA against
the Respondent, claiming that the latter had breached the employment
contract. He asserts that salaries in the amount of USD 6,000 net are outstanding
for the first season (2004/2005) for the following months:
- USD 2,000 for October 2004 (he was paid only USD 2,000)
- USD 2,000 for November 2004 (he was paid only USD 2,000)
- USD 2,000 for June 2005 (he was paid only USD 2,000).
4.
The Claimant affirms not having received any salary with respect to Annex 2
(2005/2006) in which the terms were identical to the first one and claims the
amount of USD 68.000 net (USD 20,000 plus 12xUSD 4,000). The Claimant requests
the total net amount of USD 74,000 from the Respondent.
5.
The Claimant furthermore states that after the game of Z against C, the coach
of the Respondent had physically attacked him, insulted him in front of the other
players and had forbidden him to participate in the trainings. In support of his
statement, the Claimant submitted a translation of a certificate dated 1
September 2005 from a community health center attesting that the Claimant
suffered from anxiety, fear and unsteady sleep. The Claimant also stated that he
had asked the Y Football Federation for protection but that he had never
received any reply from it.
6.
In its statement of defence, the Respondent asserts that even though the
employment contract concluded between the parties was valid until 20 July
2007, the Claimant left the club on 1 August 2005 without permission. The
Respondent affirms having held a council meeting on 10 August and 30 August
2005 regarding the Claimant’s violation of the contract. At the council meeting,
it was decided that financial sanctions were to be imposed on the Claimant
and that the Professional Football League of Y would be informed about the
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problems
with
the
Claimant. The Respondent states that it does not have any financial obligations
towards the Claimant as the latter had breached the employment contract.
7.
The Respondent alleged that the employment contract submitted by the
Claimant was not identical with the one in its possession and the one deposited
at the Professional Football League of Y as the registration number is missing. The
Respondent hereto enclosed a copy of the employment contract in its
possession. In addition to that, the Respondent asserts that the Annex to the
employment contract submitted by the Claimant is forged which could be seen
from the stamp of the Respondent. The Respondent did not specify which Annex
it was referring to and did not present the alleged authentic Annex. The
Respondent enclosed extracts of the minutes of its council meetings of 10
August and 30 August 2005, witness statements that the Claimant had left the
Respondent on 1 August 2005 without authorisation, a copy of the order of the
Respondent dated 31 August 2005 which rules that salary would be stopped
being paid to the Claimant as of 1 September 2005 and that a fine would be
imposed on the Claimant for the unauthorised leaving from it.
8.
In his comments thereto, the Claimant confirmed that he had played for the
Respondent until 1 August 2005 and that he had left the Respondent after
having been exposed to verbal and physical violence by the head coach. He
adds that all statements made by the Respondent were attempts of faking the
facts in order to avoid to be held liable for its contractual obligations. The
Claimant furthermore refers to his declarations contained in his statement of
claim.
9.
Upon FIFA’s invitation to submit its closing arguments, in particular with respect to
the allegation of the Claimant that he was verbally and physically exposed to
violence of the head coach and that the salaries of October 2004, November
2004 and June 2005 were outstanding and to submit documentary evidence on
the effected salary payments, the Respondent rejected all allegations regarding
the alleged violent acts committed against the Claimant and affirms having
paid the Claimant all the salaries until 1 August 2005. The Respondent asked for
an extension of the deadline until 31 August 2006 to submit evidence of salary
payments but has actually not submitted any evidence.
10.
With respect to the allegation of the Respondent that the Annexes to the
contract were forged by the Claimant, FIFA invited the Respondent to submit
the original Annex to the contract. However, the Respondent has not submitted
any such document.
II.
Considerations of the Dispute Resolution Chamber
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1.
First of all, the Chamber analysed whether it was competent to deal with the
matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber. The present matter was submitted to FIFA on 10 October
2005, as a consequence the Chamber concluded that the revised Rules
Governing Procedures (edition 2005) on matters pending before the decision
making bodies of FIFA are applicable to the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber (DRC) shall
examine its jurisdiction in the light of articles 22 to 24 of the current version of the
Regulations for the Status and Transfer of Players (edition 2005). In accordance
with art. 24 par. 1 in combination with art. 22 (b) of the aforementioned
Regulations, the Dispute Resolution Chamber shall adjudicate on employmentrelated disputes between a club and a player that have an international
dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving a Y club and a X player regarding the
dispute arisen in connection with an employment contract.
4.
Subsequently, the members of the Chamber analyzed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred, on the one hand,
to art. 26 par. 1 and 2 of the Regulations for the Status and Transfer of Players
(edition 2005) and, on the other hand, to the fact that the relevant contract at
the basis of the present dispute was signed in July 2004 and the claim was
lodged at FIFA on 10 October 2005. In view of the aforementioned, the
Chamber concluded that the current FIFA Regulations for the Status and
Transfer of Players (edition 2005, hereinafter: the Regulations) are applicable to
the case at hand as to the substance.
5.
In continuation, and entering into the substance of the matter, the members
of the Chamber started by acknowledging the above mentioned facts and
all further correspondence contained in the file. In particular, they took note
that the two parties had signed an employment contract for the period from
20 June 2004 until 20 July 2007, which can be established in accordance with
the documents contained in the file.
6.
Equally, the Chamber noted that it is uncontested that the Claimant had left
the Respondent on 1 August 2005, i.e. prior to the end of the validity of the
employment contract, without permission and without giving any notice to
the Respondent.
7.
Furthermore, the Chamber took note that on the one hand the Claimant is of
the opinion of having left the Respondent with a valid reason as allegedly
half of three monthly salaries were outstanding and as he allegedly was
assaulted by the coach of the Respondent and prevented from
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participating in the trainings. The members of the DRC noted that the
Claimant requests payment of USD 6,000 for outstanding salaries and USD
68,000 as compensation for the contractual value of the second year of the
employment contract.
8.
On the other hand, the Chamber acknowledged that the Respondent
considers that the Claimant had breached the employment contract by
leaving it prematurely. The members noted that the Respondent had
affirmed to have paid all salaries to the Claimant until 1 August 2005 and
that it rejected the allegation of the Claimant that he had been exposed to
violent acts committed by the coach.
9.
In continuation, the Chamber first drew its attention to the alleged
outstanding salaries of October and November 2004 und June 2005 in the
total amount of USD 6,000. According to the Claimant, he had only received
half of the salaries for the aforementioned months, i.e. for each month USD
2,000 instead of USD 4,000. The Chamber acknowledged the fact that this
allegation was contested by the Respondent.
10.
The members added that the alleged outstanding amount of USD 6,000
which equals to one and a half months of the Claimant’s salary, could not
be considered, in the present case, as substantial enough to justify a
premature termination of an employment contract. In this respect, the
Chamber concluded that the relevant alleged outstanding salaries did not
constitute a just cause for the unilateral termination of the employment
contract.
11.
In continuation, the members drew their attention to the allegation of the
Claimant that he had been physically assaulted by the coach of the
Respondent and noted that this allegation was contested by the
Respondent. The Chamber acknowledged that the Claimant had submitted
a medical certificate attesting anxiety, fear and unsteady sleep. The
Chamber stated that the medical certificate had been issued on 1
September 2005, i.e. one month after the Claimant’s leaving from the
Respondent. The members considered that from the aforementioned
medical certificate, it could not be drawn any conclusion as
to why the Claimant suffered anxiety and fear and - in the case of a possible
assault - as to the time of the assault and the aggressor.
12.
In view of the above, the Chamber concluded that the Claimant had not
been able to provide FIFA with evidence with respect to the alleged assault
committed by the coach of the Respondent and that the allegation of the
Claimant therefore has to be rejected.
13. As a result of the above mentioned deliberations, the Chamber concluded
that there was no just cause for the Claimant to leave the Respondent prior
to the expiry of the employment contract. As a consequence, the Chamber
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decided that the Claimant had breached the relevant employment
contract by leaving the Respondent without just cause on 1 August 2005.
14.
However, the Chamber added that the Respondent bears a considerable
part of the responsibility for the early termination of the employment
contract as it had not contested the assertion of the Claimant that he was
prevented from participating in the trainings of the Respondent.
15.
The Chamber continued that notwithstanding the abovementioned breach
of contract committed by the Claimant, it had to verify the allegation of the
latter that he had not received half of his salaries for October and November
2004 as well as for June 2005 in the total amount of USD 6,000. In this respect,
the Chamber noted that the Respondent had asserted having paid the
Claimant all due salaries until 1 August 2005, however, without submitting any
documentary evidence in support of its allegation. The members stated that
as it is the responsibility of the employer to submit evidence on effected
salary
payments and as the Respondent has failed to provide evidence in this
respect, the Respondent has to pay the Claimant the outstanding and
claimed salaries in the amount of USD 6,000. The Chamber added that for
the period from 20 July 2005 until 1 August 2005, in accordance with Annex 2
of the relevant employment contract, the Claimant was additionally entitled
to receive the proportionate salary in the amount of USD 1,330 which leads
to a total of USD 7,330 which the Respondent has to pay to the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the player is partially accepted.
2.
The Respondent has to pay the total amount of USD 7,330 as outstanding
salaries to the player within 30 days following the date of the communication of
the present decision.
3.
In the event that the above-mentioned amount is not paid within the stated
deadline, an interest rate of 5% per year will apply as of expiry of the relevant
time-frame and the present matter shall be submitted to FIFA’s Disciplinary
Committee, so that the necessary disciplinary sanctions may be imposed.
4.
Any further claims submitted by the Claimant are rejected.
5.
The Claimant is directed to inform the Respondent directly and immediately of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
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6.
According to art. 61 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:
Avenue de Beaumont 2
CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Urs Linsi
General Secretary
Enclosed: CAS directives
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