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 (the Netherlands), member
Rinaldo Martorelli (Brazil), member
Sofoklis Pilavios (Greece), member
Essa M. Saleh Al-Housani (United Arab Emirates), member
on the claim presented by the player
V,
as “Claimant”
against the club,
FC M,
as “Respondent”
regarding a contractual dispute arisen between the parties.
I.
Facts of the case
1.
During the investigation of the present case, the parties involved in the dispute
submitted copies of the following three documents.
The player V, submitted:
I. an agreement dated 30 August 2004, valid until 30 June 2008, in
accordance with which the player should receive a monthly salary of EUR
2,000, a monthly pension fund contribution of EUR 1,250, general
expenses of EUR 750, match bonuses of EUR 750 for a draw and EUR 1,500
for a win plus a car and accommodation.
This agreement provided that these conditions would be specified in the
employment contract for professional players in the B championship,
which the player claims was never signed between the parties.
II. an employment contract dated 30 August 2004 (player contests his
signature on this contract), valid until 30 June 2008, in accordance with
which the player should receive a monthly salary of EUR 2,700, a monthly
pension fund contribution without indicating any amount, no general
expenses included, a car and accommodation (non-specified) as well as
match bonuses of EUR 500 and EUR 1,500 for a draw and a win
respectively.
2.
The club, FC M, submitted:
III. an employment contract dated 30 August 2004 (player contests his
signature on this contract), valid until 30 June 2008, in accordance with
which the player should receive a monthly salary of EUR 2,000, a monthly
pension fund contribution without indicating any amount, no general
expenses included, a car as well as match bonuses of EUR 500 and EUR
1,500 for a draw and a win respectively.
This employment contract III., stipulating a monthly salary of EUR 2,000,
was, according to the B club, deposited at the B Football Associations.
However, neither the B Football Associations nor the B club were able to
provide FIFA with the original of the said employment contract.
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3.
On 14 October 2005, the player lodged a complaint with FIFA and maintained
that the club still owes him the following outstanding remuneration on the
basis of the agreement signed on 30 August 2004 (i.e. contract no. I. above):
a) partly outstanding salaries for the months of September 2004 until July
2005 in the total amount of EUR 7,592, specified as follows:
-
September 2004 to November 2004; 3x EUR 976 totalling EUR
2,928, i.e. receiving only a monthly salary of EUR 1,024.
Furthermore, the player maintains that for these months, the
club deducted 36% for taxes on his salary even though,
according to the applicable B law, a maximum of 18% for
taxes may be deducted;
-
December 2004 to July 2005: 8x EUR 583, totalling EUR 4,664,
i.e. receiving only a monthly salary of EUR 1,417;
In addition to that, the player alleges that the club, despites its obligation
to provide him with an apartment and a vehicle free of charge, deducted
each month the amounts of EUR 750 for the vehicle and EUR 165 for taxes
and electricity.
b) Moreover, the player claims that the club failed to pay him his salaries
each in the amount of EUR 2,000 since August 2005.
c) Finally, the player maintains that the B club failed to pay him his monthly
pension fund in the amount of EUR 1,250 since September 2004.
4.
According to the player, the club barred him from training on his return from
his holidays in the beginning of January 2005. He was then obliged to play for
another B club, K, with which he signed a contract valid until 30 June 2005.
During this time, it was, according to the player, decided that his salary would
continue to be paid by the B club.
5.
The player asserts that after the end of the loan period with K, i.e. on 30 June
2005, he was not aware for which club he should continue to render his
services. Therefore, on 27 June 2005, he sent a letter to both the B club and K
and requested instructions as to where he should report for duty without,
however, receiving any reaction from none of the clubs concerned.
Furthermore, by means of this letter, he put the B club in default of its
contractual obligations. As a consequence thereof, he returned to his home
country E on 28 June 2005.
6.
The player further explained that subsequently, on 1 August 2005, he visited
the B club in order to offer his services.
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7.
The player argues that even though he offered his services to the B club on
several occasions, the latter precluded him from the trainings and wanted to
get rid of him. Therefore, he was forged to return to E.
8.
On 27 December 2005, in reply to the claim, the club submitted a statement
alleging in particular that the player’s documents are forgeries that seek to
refute the existence of a valid employment contract.
9.
The club maintains that the employment contract stipulating a monthly salary
of EUR 2,000 is the only valid contract existing between the parties.
Furthermore, the club maintains having duly fulfilled all its financial
obligations towards the player.
10.
In order to support its statement, the B club remitted in particular the
following documents during the present investigation.
a) list compiled by the club of payments allegedly made to the player
“décompte” (not signed by the player):
Date
09/2004
10/2004
11/2004
12/2004
01/2005
02/2005
03/2005
04/2005
05/2005
06/2005
Amount
EUR
1,414.76
EUR
3,052.22
EUR
1,261.28
EUR
2,949.72
EUR
1,417.53
EUR
1,909.54
EUR
1,581.54
EUR
2,092.82
EUR
1,436.82
EUR
3,032.73
b) extract from the club’s bank account, detailing debits made from its
account in favour of the player (confirmation from bank):
Value Date
23/12/2004
28/01/2005
04/03/2005
16/03/2005
31/03/2005
16/06/2005
20/07/2005
02/08/2005
Amount
EUR
1,261.28
EUR
2,949.72
EUR
1,028.61
EUR
388.92
EUR
1,909.54
EUR
2,092.82
EUR
1,199.85
EUR
3,032.73
Reference
11/2004
12/2004
01/2005
Balance 01/2005
Advance 02/2005
04/2005
05/2005 2 unpaid fines
06/2005
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c) the player’s payslips from September 2004 until June 2005 according to
which the player was entitled to receive:
Value Date
September 2004
October 2004
November 2004
December 2004
January 2005
February 2005
March 2005
April 2005
May 2005
June 2005
Amount
EUR
2,164.76 (2,700 - taxes)
EUR
3.802.22 (2,700 + 2,000 Bonus – taxes)
EUR
2,572.22 (2,700 + 500 Bonus – taxes)
EUR
3,699.72 (2,700 + 1,875 Bonus – taxes)
EUR
2,167.53 (2,700 – taxes)
EUR
2,659.54 (2,700 + 600 Bonus – taxes)
EUR
2,331.54 (2,700 + 200 Bonus – taxes)
EUR
2,842.82 (2,700 + 800 Bonus – taxes)
EUR
2,186.82 (2,700 – taxes)
EUR
3,032.73 (2,700 + holiday benefits –taxes)
N.B. both the club’s own list of payments made to the player and the payslips
detail a gross monthly salary of EUR 2,700.
11.
Furthermore, the club maintains that in addition to the above-mentioned
payments it paid the player the following benefits in kind: a value of EUR 750
for the car, a value of EUR 1,000 for the apartment and a value of EUR 330 for
food.
12.
The club stressed that it stopped paying the player’s salaries as from August
2005 when it became evident that the player left the club without
authorization. According to the allegations of the club, the player left at the
end of the season 2004/2005, i.e. in May 2005.
13.
Therefore, due to the player leaving the club without authorization, the club
submitted a counter-claim against the player and requested payment of a no
further specified amount of EUR 200,000 plus EUR 50,000 for the transfer
amount that the club allegedly still owes to the players’ former club.
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14.
With regard to the allegations of the club that it entirely complied with its
financial obligations, the player submitted a copy of a statement of his bank
account covering the period from 1 September 2004 until 27 June 2005, in
order to demonstrate that not everything was duly paid by the club. The
statement of account lists, inter alia, the credits made on the player’s account
with payments from the president of the B club.
Value Date
26/11/2004
23/12/2004
28/01/2005
04/03/2005
16/03/2005
31/03/2005
02/05/2005
16/06/2005
Amount
EUR
1,480.17
EUR
1,261.28
EUR
2,949.72
EUR
1,028.61
EUR
388.92
EUR
1,909.54
EUR
1,581.54
EUR
2,092.82
Note
10/2004
11/2004
12/2004
01/2005
Balance 01/2005
Advance 02/2005
03/2005
04/2005
15.
The player is of the opinion that there are significant differences between the
documents submitted by the club and those submitted by him. In essence,
according to the player, it can be revealed that not everything was duly paid
by the club.
16.
On 31 July 2006, the player signed a contract with the E club, FC L, valid until
31 July 2007 based on which he was entitled to a certain monthly salary, that
will be considered by the Dispute Resolution Chamber.
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 14 October 2005. Consequently, the
Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: Procedural Rules) are applicable to
the matter (cf. art. 18 par. 2 and 3 of the Procedural Rules).
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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 an E player and a B 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
14 October 2005, the previous version of the regulations (edition 2005;
hereinafter: the 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. This is, the
members of the Chamber started by acknowledging the above-mentioned
facts and documentation contained in the file and, in view of the
circumstances of the case at stake, focused their attention on the question
whether, as alleged by both parties respectively, i.e. the player and the club,
the counter-party had committed a breach of contract and, in the affirmative,
to verify and decide upon the consequences to be applied for such alleged
breach of contract.
5.
In particular, the members took note that the parties involved presented
different documents and arguments as regards the employment
contract/agreement to be considered valid and, most notably, binding for the
parties. As a matter of fact, the Chamber received no fewer than three
different employment contracts/agreement from both the player and the club
respectively during the course of the investigations of the present affair.
6.
In view of the above, the Dispute Resolution Chamber held that, in a first step,
it is crucial to determine which of the employment contracts submitted during
the present investigation is to be considered the valid and binding one for the
parties involved.
7.
In this respect, the members of the Chamber mentioned that the player deems
that the employment contract I. is valid and binding for the parties, whereas
his signature on the employment contract II. that he submitted providing for a
monthly salary of EUR 2,700 was falsified and thus cannot be considered valid.
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8.
On the other hand, the Chamber noted that the B club is of the opinion that
the employment contract III. that it submitted is the valid one. However, the
Chamber recalled that neither the B club nor the B Football Associations were
able to provide the original of the employment contract III.
9.
In this context, the Chamber emphasized that, as a general rule, it is not the
competent body to decide upon matters of criminal law, such as the alleged
falsified signature or document, but that such affairs fall into the jurisdiction
of the competent criminal authority. Moreover, and with regard to the
substance of the present contractual case, the Chamber emphasized that each
party is responsible to corroborate its allegations and that, in respect to the
alleged falsification of the employment contract II., the player abstained from
providing the pertinent evidence.
10.
For the sake of good order and in accordance with art. 12 par. 3 of the
Procedural Rules, the Chamber emphasized that in accordance with the legal
principle of the burden of proof, which is a basic principle in every legal
system, a party asserting a fact has the obligation to prove the same.
11.
In view of the above, the Chamber established that, at this stage, it could not
uphold the player’s position with regard to the alleged falsification of the
relevant employment contract that he submitted due to lack of evidence in this
respect.
12.
On the other hand, the Dispute Resolution Chamber stressed that if falls within
the responsibility of the B club to ensure that the employment contracts it
signs with its players are duly registered with its association. Therefore, failure
to be able to submit, upon requested, the original of the relevant employment
contract, is thus to the detriment of the relevant club which did not assume its
obligations. In fact, by not being able to submit the original of the
employment contract III., the B club could not provide documentary evidence
supporting its allegations concerning the valid and binding employment
contract in this affair.
13.
In continuation, the deciding authority held that all documentation on file and
submitted by the parties involved shall be considered with free discretion.
Therefore, the Chamber focused its attention on all of the different
contracts/agreement submitted to the file in order to evaluate which contract
was in fact executed by the parties.
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14.
By doing so, the members of the Chamber reiterated that, according to the B
club, the employment contract III. is valid, thus the one providing for a
monthly salary of EUR 2,000 and a monthly pension fund contribution,
without, however, indicating an amount of such contribution. Contrary to
these allegations, the deciding body took note that, again according to the B
club, i.e. the list c) the club submitted concerning the player’s payslips from
September to June 2005, the player was entitled to receive a monthly salary of
EUR 2,700 to which bonuses were to be added and taxes were to be deducted.
15.
From the Chamber’s point of view, such divergent statements do clearly not
appear to be reliable. What is more, not only the aforementioned list c)
submitted by the club provides for a monthly salary of EUR 2,700, but also the
list compiled by the club, i.e. the list a) detailing payments allegedly made by
the club to the player.
16.
In view of the above, despite both parties’ contrary statements in this regard,
the deciding body reached the conclusion that the real employment contract
which appears to have been executed between the parties involved was the
contract II. submitted by the player and providing, inter alia, for a monthly
salary of EUR 2,700.
17.
Taking into account the above, the Chamber continued by ascertaining
whether, as alleged by the player, the club breached the employment contract
by not complying with its payment obligations or, as claimed by the club, the
player breached the contract by leaving without authorization.
18.
In this context, the deciding body noted that, as not contested, the contractual
relationship between the parties came to an end by end of July 2005.
According to the player, he went to E after offering several times without
success his services to the club, the last time on 1 August 2005. Equally,
according to the B club, it had stopped paying the player’s salary as of August
2005 when it allegedly became evident that the player no longer continues to
render his services to the club.
19.
In view of the above, the Chamber had to analyse whether or not the club duly
complied with its payment obligations on the basis of the employment
contract concluded between the parties to the dispute until the date the
contractual relationship came to an end.
20.
In this regard, the members of the Chamber referred again to the list
submitted by the B club detailing in particular the payments to which the
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player was apparently entitled to, i.e. the list II c) above. Equally, the deciding
body contemplated the list of payments the B club allegedly made towards the
player, i.e. the list II.b) above. By simply comparing those abovementioned lists,
the Dispute Resolution Chamber could establish that the player was entitled to
receive the global amount of EUR 27,459.90 until 31 July 2005.
21.
In view of the above and considering the payments the club made to the
player, the deciding body unanimously reached the conclusion that the B club,
as per its own lists, failed to pay the player almost 50% of the relevant salary
due until the end of the contract.
22.
In continuation, and without going into further details of the disruption of the
contractual relationship between the parties, the members of the Chamber
stated that the persistent failure of a club to comply with its financial
obligations towards a player without valid reasons is generally to be
considered as an unilateral breach of employment contract without just cause.
23.
The deciding body, on the basis of the documentation at its disposal, could not
detect any valid reasons for the B club’s failure to comply with its financial
obligations towards the player in question.
24.
Consequently, the Chamber concluded that the behaviour of the B club in the
present case is to be considered as a persistent failure of the club and
therefore constitutes an unjustified breach of contract
25.
In view of the aforementioned conclusion, the Chamber went on to deliberate
on the consequences which should apply on the B club.
26.
In this respect, the members of the Chamber stated that the B club has to pay
the player outstanding remuneration in the amount of EUR 13,587 until the
date the breach of contract occurred.
27.
In continuation, as far as the player’s claim for pension fund contribution is
concerned, the Chamber decided to reject this claim in the light of the fact
that the relevant employment contract which is to be considered valid, as
shown above, does not indicate any value.
28.
Having considered that, the Chamber had to verify and decide whether the B
club is accountable for compensation for breach of contract without just cause.
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29.
In this respect and considering the objective criteria listed in art. 17 par. 1 of
the Regulations, the Chamber decided that a compensation of EUR 70,000 is
adequate, taking in particular into consideration the behaviour of the B club as
well as the remuneration due to the player until the ordinary expiry date of
the employment contract.
30.
In light of the above, the Dispute Resolution Chamber decided that the B club
has to pay the player the amount of EUR 13,587 for outstanding salaries and
EUR 70,000 as compensation for breach of contract without just cause. In total,
the B club has to pay to the player the amount of EUR 83,587.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, player V, is partially accepted.
2.
The Respondent, FC M, has to pay to the Claimant, the amount of EUR 83,587
(EUR 13,587 as outstanding salaries and EUR 70,000 as compensation) within
30 days as from the date of notification of this decision.
3.
Any further claims lodged by the Claimant are rejected.
4.
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 for consideration and decision.
5.
The Claimant is directed to inform the Respondent 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.
*****
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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
Encl. CAS directives
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