Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 October 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Rinaldo Martorelli (Brazil), member
Sofoklis Pilavios (Greece), member, refrained from participating to the deliberations
Essa M. Saleh Al-Housani (U.A.E.), member
on a matter between the player
E,
as Claimant
and
O,
as Respondent
regarding an employment related contractual dispute
arisen between the player and the club.
I.
Facts
1.
On 29 January 2005, the P player E (hereafter: the Claimant) entered into an
employment contract with the G club O (hereafter: the Respondent), valid from 29
January 2005 to 30 December 2006. The H Football Federation confirmed that the
player had been registered with the club from 9 February 2005 to 2 January 2007.
2.
Under the employment contract, the Claimant was entitled to:
- 12 monthly salary payments of EUR 635 or EUR 689 [figures partially illegible
in copy of contract], payable at the end of each month, as well as a Christmas
bonus and a holiday bonus (cf. point 3).
- a housing allowance of EUR 235 (cf. point 5)
- a total of EUR 51,600 payable in 20 instalments, as follows (cf. point 6):
- 10 payments of EUR 1,930 for the period from 27 February 2005 (first
payment) to 20 December 2005 (tenth payment);
- 10 payments of EUR 3,230 after the club unilaterally extended the
contract, from 30 January 2006 (eleventh payment) to 30 November 2006
(twentieth payment).
3.
On 8 May 2007, the Claimant submitted a claim against the Respondent to FIFA to
recover allegedly outstanding salary payments of EUR 30,164. The total of EUR
30,164 was broken down as follows:
a) for the 2005-06 season:
- four payments of EUR 3,230 (EUR 12,920);
- seven payments of EUR 577 (EUR 4,039, which allegedly corresponds to the
basic salary, cf. above, the amount stipulated in the contract is higher – EUR
635 or EUR 689);
- six payments of EUR 235 (EUR 1,410);
b) For the 2006-07 season:
- EUR 1,710 (three payments of EUR 620 as basic salary, less EUR 150 because he
was allegedly overpaid for housing in December 2006);
- EUR 10,085 (five payments of EUR 3,230, less EUR 5,465 allegedly already
received, and less a total of EUR 600 he was allegedly overpaid for housing for
four months).
4.
The Respondent has omitted to make a statement on this matter, despite a
number of requests from FIFA.
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was
competent to deal with the case at hand. In this respect, it took note that the
present matter was submitted to FIFA on 8 May 2007. Consequently, the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2005, hereafter: Procedural Rules) are applicable
to the matter at hand (cf. art. 18 par. 2 and 3 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 2008) 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 P player and a G club.
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 2008), and considering that the present claim was lodged on 8
May 2007, the previous version of the regulations (edition 2005; 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. The
members of the Chamber carefully studied the facts outlined above as well as
the entire documentation on file.
5.
First, the Chamber noted that the Respondent, despite having been solicited to
do so by FIFA several times, never presented its position to the claim lodged
against it by the Claimant.
6.
In this respect, the Chamber stated that, as a general principle of procedure
before the Dispute Resolution Chamber, if a respondent does not reply to the
claim, a decision shall be taken upon the basis of the documents on file (cf. art.
9 par. 3 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber). Furthermore, by failing to
reply to the claim, so the Chamber, the respondent renounces its right to
defence and accepts the allegations of the claimant.
7.
On account of the above, the Chamber stated that because the Respondent
never took position in the dispute, in spite of having been invited to do so, the
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Dispute Resolution Chamber has to pass a decision based only on the facts and
evidences provided by the Claimant and on his allegations.
8.
Accordingly, the Chamber emphasised that the Claimant had duly proven the
existence of the contractual relationship with the Respondent as well as the
contractual basis of his financial claim against the Respondent.
9.
As a consequence and on account of all of the above, the members of the
Chamber acknowledged that under the employment contract, the Claimant was
entitled to 12 monthly salary payments of EUR 635 or EUR 689, payable at the end
of each month, (cf. point 3), a housing allowance of EUR 235 (cf. point 5), and a
total of EUR 51,600 payable in 20 instalments, as follows (cf. point 6): 10 payments
of EUR 1,930 for the period from 27 February 2005 (first payment) to 20 December
2005 (tenth payment); and 10 payments of EUR 3,230 after the club unilaterally
extended the contract, from 30 January 2006 (eleventh payment) to 30 November
2006 (twentieth payment).
10.
Furthermore, the Chamber took note that the Claimant asks to recover salary
payments of the total amount of EUR 30,164. The Chamber noted that this
amount consists, for the 2005-06 season, of four payments of EUR 3,230 (EUR
12,920), seven payments of EUR 577 (EUR 4,039, which corresponds to the alleged
basic salary) and six payments of EUR 235 as a housing allowance (EUR 1,410) as
well as for the 2006-07 season of EUR 1,710 (three payments of EUR 620 as the
alleged basic salary, less EUR 150 because he claims to have been overpaid for
housing in December 2006), EUR 10,085, which corresponds to five payments of
EUR 3,230, less EUR 5,465 allegedly already received, and less a total of EUR 600 he
was allegedly overpaid for housing for four months.
11.
According to this listing and taking into account the failure of the Respondent to
take position in the present dispute, the members of the Chamber unanimously
decided to fully accept the claim of the Claimant and to order the Respondent
to pay to the Claimant the amount of EUR 30,164.
*****
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, E, is accepted.
2.
The Respondent, O, has to pay to the Claimant, E, the amount of EUR 30,164
within 30 days as from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiring of the fixed time limit and
the present matter shall be submitted upon the party’s request to FIFA’s
Disciplinary Committee so that the necessary disciplinary sanctions may be
imposed.
4.
The Claimant, E, is directed to inform the Respondent, O, 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. 63 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: [email protected], www.tas-cas.org
For the Dispute Resolution Chamber:
__________________________________
Jérôme Valcke
Secretary General
Enclosed: CAS directives
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