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, X, R,
represented by Z,
as Claimant
against
the club, Y, Q,
as Respondent
regarding outstanding remuneration on the
basis of an employment relationship
I.
Facts of the case
1.
The player X, Claimant, and the club Y, Respondent, signed an employment
contract, valid as from 1 September 2004, which was terminated by means of
a further agreement (hereinafter: Termination Agreement) with effect from 31
January 2005.
2.
By virtue of clause 3 of the Termination Agreement, the Claimant was inter alia
due to receive a total of USD 92,000 as settlement of all his demands arising
from the employment contract, in accordance with the following payment
plan:
On 31 January 2005: USD 32,000
On 20 February 2005: USD 20,000
On 20 March 2005: USD 20,000
On 20 April 2005: USD 20,000
3.
Clause 4 of the Termination Agreement, according to which the Respondent
undertook, subject to certain conditions, to pay the costs related to the
Claimant’s surgery, was amended by virtue of a further agreement dated
9 February 2005. Under the terms of the said agreement, the Respondent
committed itself to pay USD 10,000 to the Claimant in settlement of the latter’s
treatment costs. This amount was duly paid by the Respondent.
4.
From the total amount due on the basis of the Termination Agreement, the
Claimant maintains having received two payments amounting to USD 15,000
(on 23 May 2005) and USD 1,400, respectively.
5.
On 7 September 2005, the Claimant and the Respondent signed a further
agreement (hereinafter: Supplementary Agreement). Under the terms of the
said contract, the Respondent agreed to pay the balance owed to the
Claimant, amounting to USD 75,600, in accordance with the following
payment plan, which had apparently been proposed by the Respondent:
USD 20,000 immediately on signing of the Supplementary Agreement
USD 10,000 on 31 October 2005
USD 10,000 on 31 November 2005
USD 10,000 on 30 December 2005
USD 10,000 on 28 February 2006
USD 15,600 on 31 March 2006
Player X / Club Y
2
6.
In clause 7 of the said agreement, time was stated to be of the essence. It
was furthermore held that in case of payments behind schedule, the
Respondent was to be considered in material breach of the relevant
agreement.
7.
On 9 March 2006, the Claimant lodged a complaint with FIFA claiming that
the Respondent had repeatedly breached the Supplementary Agreement.
The payments due on 31 October 2005 and 31 November 2005 had been
paid on 9 November 2005 and 6 December 2005, respectively. Since then, the
Respondent had allegedly failed to settle the remaining instalments, in spite of
several requests for payment by the Claimant which had apparently
remained unanswered. Consequently, by means of his complaint, the
Claimant terminated the Supplementary Agreement and claimed the total
outstanding amount of USD 35,600 as well as the payment of his legal costs
occasioned by the claim.
8.
By letter to FIFA dated 27 July 2006, the Respondent acknowledged that it
owed the amount of USD 35,600 to the Claimant. However, it informed FIFA
that so far it had not been able to pay this amount to the Claimant due to
financial difficulties and that it would proceed with the payment as soon as
possible.
9.
In view of the information provided by the Respondent, on 4 August 2006 FIFA
invited the parties involved to try to settle the present matter amicably. On 22
August 2006, the legal representative of the Claimant informed FIFA that the
parties had not been able to find an amicable solution to the dispute and
thereby added that the Termination Agreement and the Supplementary
Agreement already represented two attempts to find an amicable resolution
to the present matter, both of which the Respondent had failed to comply
with. Consequently, the legal representative of the Claimant requested that
the dispute be submitted to the Dispute Resolution Chamber for consideration
and a formal decision.
10.
On account of all of the above, the Claimant asks the Dispute Resolution
Chamber to condemn the Respondent to pay to him USD 35,600, as per the
Supplementary Agreement signed by the parties involved on 7 September
2005, as well as the legal costs incurred through the current proceedings, and
furthermore requests the Dispute Resolution Chamber to impose appropriate
sanctions on the Respondent.
II.
Considerations of the Dispute Resolution Chamber
Player X / Club Y
3
1.
First of all, the Dispute Resolution Chamber analysed whether it was
competent to deal with the matter at hand. In this respect, the Chamber
referred to art. 18 paras. 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 9 March 2006, thus after 1 July 2005.
Therefore, the Dispute Resolution Chamber concluded that the revised Rules
Governing the 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 Dispute Resolution Chamber, art. 3
para. 1 of the above-mentioned Rules states that the Dispute Resolution
Chamber shall examine its jurisdiction in the light of arts. 22 to 24 of the current
version of the Regulations for the Status and Transfer of Players (edition 2005).
In accordance with art. 24 para. 1 in connection with art. 22 lit. b of the
aforementioned Regulations, the Dispute Resolution Chamber shall
adjudicate on employment related 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 player from R and a club from Q
regarding a dispute between the parties in connection with an employment
contract.
4.
Subsequently, the Dispute Resolution Chamber analysed which edition of the
Regulations for the Status and Transfer of Players should be applicable to the
substance of the matter. In this respect, the Chamber referred, on the one
hand, to art. 26 paras. 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 present
claim had been lodged with FIFA on 9 March 2006. In view of the
aforementioned, the Dispute Resolution Chamber concluded that the current
FIFA Regulations for the Status and Transfer of Players are applicable to the
substance of the case at hand.
5.
Entering into the substance of the matter, the Dispute Resolution Chamber
examined the documentation presented by the Claimant and took note that
in September 2004, the parties involved in the present dispute had entered
into an employment relationship which was terminated by means of the
Termination Agreement with effect from 31 January 2005. Furthermore, the
Chamber acknowledged that by signing the said agreement, the Respondent
had inter alia committed itself to pay the total amount of USD 92,000 to the
Claimant by four monthly instalments during the period from January 2005 until
April 2005.
Player X / Club Y
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6.
In this respect, the Dispute Resolution Chamber took note of the allegations of
the Claimant, according to which, by September 2005, he had only received
two payments from the Respondent amounting to USD 16,400 in total.
7.
The members of the Dispute Resolution Chamber then turned their attention to
the duly signed Supplementary Agreement dated 7 September 2005, by
means of which the Respondent undertook to pay the remaining balance of
USD 75,600 to the Claimant in six monthly instalments during the period from
September 2005 until March 2006.
8.
With reference to the Supplementary Agreement, the Chamber took note
that the Claimant declared having received only the first three installments, of
which the second and third were apparently paid behind schedule.
According to the Claimant, the remaining installments totalling to USD 35,600
remained unpaid.
9.
In this respect, the members of the Dispute Resolution Chamber paid due
consideration to the Respondent’s letter dated 25 July 2006, by means of
which it acknowledged that it owed the amount of USD 35,600 to the
Claimant.
10.
In light of the above, the Chamber concluded that the Respondent accepts
the allegations of the player in the present case and that, consequently, the
Respondent must pay the amount of USD 35,600 to the Claimant.
11.
In continuation, the Dispute Resolution Chamber once more referred to the
Respondent’s letter dated 25 July 2006, by means of which it explained that it
was currently not in a position to pay the amount in of USD 35,600 to the
Claimant, as it was suffering from financial difficulties, but that it assumed to
pay the outstanding amount as soon as possible.
12.
In this respect, the Chamber took into account that the Respondent had
certainly undertaken efforts with the objective of fulfilling its contractual
obligations and that nearly two thirds of the original debt had been paid,
albeit with a considerable delay.
13.
In view of the above considerations, the Chamber concluded that it could
not be established that the Respondent had acted in bad faith in the present
case. Consequently, the members of the Dispute Resolution Chamber
decided to authorize the Respondent to pay the relevant amount in two
installments amounting to USD 18,600 and USD 17,000, respectively.
Player X / Club Y
5
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, the player X, is accepted.
2.
The Respondent, the club Y, shall pay the amount of USD 35,600 to the
Claimant in accordance with the following payment schedule:
- USD 18,600 within 30 days as from the date of notification of this decision;
- USD 17,000 within 60 days as from the date of notification of this decision.
3.
In the event that the above-mentioned amounts are not paid within the
indicated deadlines, an interest rate of 5% per annum will apply as of the
expiry of the fixed time limits, and the present matter shall be submitted to
FIFA’s Disciplinary Committee, so that the necessary disciplinary sanctions may
be imposed.
4.
The Claimant is instructed 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.
5.
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
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
On behalf of the
Player X / Club Y
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Dispute Resolution Chamber:
Urs Linsi
General Secretary
Encl.
CAS directives
Player X / Club Y
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