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
Essa M. Saleh Al-Housani (United Arab Emirates), member
on the claim presented by the player,
T,
as Claimant
against the club,
N,
as Respondent
regarding an employment related contractual dispute arisen between the parties
involved.
I.
Facts of the case
1.
On 15 June 2007, the B player, T (hereinafter: the player), and the C club N
(hereinafter: the club) entered into an employment contract valid as from 1
June 2007 and until 31 May 2009.
2.
According to article 5 of the employment contract, the player was entitled to
receive inter alia EUR 80’000 net as from 1 June 2007 until 31 May 2008
payable as follows: EUR 10’000 after medical examination and before start of
pre-season training, EUR 5’000 on 14 August 2007, EUR 5’000 on 3 January
2008 and a monthly payment of EUR 6’000 as from 31 August 2007 until 31
May 2008 (10 months, total of EUR 60’000).
For the period of 1 June 2008 until 31 May 2009 the player was entitled to
receive EUR 80’000 net payable as follows: EUR 10’000 on 1 July 2008, EUR
10’000 on 3 January 2009 and a monthly payment of EUR 6’000 as from 31
August 2008 until 31 May 2009 (10 months, total EUR 60’000).
3.
According to article 8 of the employment contract, the parties furthermore
agreed upon the following:
“The employer undertakes to pay the agreed salary and all other benefits net
of tax and is responsible for all taxation as result of this agreement. In the
event that the employer does not pay to the player two consecutive
instalments as described in clause 5 above, the player shall have the right to
terminate the present agreement immediately with no further notice and the
Club is obliged to pay him as a compensation all the amounts mentioned in
clause 5.”
4.
On 8 November 2007, the player put the club in default in writing of payment
of his salary for September and October 2007 as well as of the amount of EUR
5’000 that fell due on 14 August 2007.
5.
The salaries for September, October and additionally November 2007 having
remained unpaid, on 4 December 2007, in accordance with article 8 of the
employment contract, the player terminated the employment contract asking
for the contractually agreed compensation of all the outstanding amounts as
mentioned in article 5 of the employment contract.
6.
On 7 December 2007, the player filed a claim against the club in front of FIFA
and claimed for the net amount of EUR 139’000 plus 5% interest accrued since
4 December 2007, the amount of EUR 139’000 being composed of the net
amount of EUR 160’000 according to article 5 of the employment contract
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after deduction of the already received amount of EUR 21’000 (EUR 10’000
paid after the medical examination, EUR 5’000 due on 14 August 2007 and
paid in September 2007, EUR 6’000 as first of the monthly payments which was
due at the end of August 2007).
7.
Additionally, the player asked that it be decided if the contract had been
terminated with just cause in accordance with the terms of the relevant
employment contract.
8.
Furthermore, the player asked to have a confirmation as from when the
contract is considered terminated.
9.
In a reply, an alleged lawyer of the C club, without having presented a power
of attorney signed by the club, stated that the player terminated his contract
of employment and therefore “the club had filed a recourse and / or petition
against the player on the 2 January 2008 according to the C Football
Federation Regulations and by-laws which is still pending.”
10.
Hereupon, FIFA asked for a duly signed power of attorney and for further
information on the claim allegedly lodged by the C club as to before which
body the claim was lodged, what the precise request was, the other party’s
reaction to it and the actual status of the procedure along with documentary
evidence.
11.
FIFA never received a reply to such request.
12.
After having received a reminder from FIFA, an alleged new lawyer of the
club, again without duly signed power of attorney, asked for an extension of
the deadline to reply.
13.
Hereupon, FIFA asked for the power of attorney duly signed by the C club and
granted a non-extendable new deadline to present the power of attorney with
the club’s position on the player’s claim.
14.
No further communication was received thereafter.
15.
On 8 September 2008, FIFA advised the parties involved to consider their
labour relationship as terminated and to focus on the financial aspects of the
dispute.
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16.
Finally, FIFA invited the C club once more via the C Football Association to
present its position, however, no answer was received.
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 7 December 2007. Consequently, the
Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: Procedural Rules) are applicable to
the matter at hand (cf. article 18 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to article 3 par. 1 of the
Procedural Rules and confirmed that in accordance with article 24 par. 1 in
combination with article 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 player and a 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 article 26 par. 1 and 2 of the Regulations on the Status and Transfer of
Players (edition 2008) and considering that the present claim was submitted on
7 December 2007 and that the contract at the basis of the dispute was signed
on 15 June 2007, the previous version of the regulations (edition 2005;
hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
4.
Once its competence and the applicable Regulations were thus established, the
Dispute Resolution Chamber went on to deal with the substance of the case.
The members of the Chamber duly noted that the Claimant and the
Respondent had signed an employment contract on 15 June 2007 valid as from
1 June 2007 until 31 May 2009 in accordance with which the Claimant was
entitled to receive inter alia a total financial remuneration of EUR 160’000 for
the total duration of the employment contract (cf. article 5 of the employment
contract).
5.
The members of the Chamber duly noted that according to article 8 of the
employment contract, the player has the right to terminate the employment
contract immediately with no further notice and the club is obliged to pay him
as a compensation “all the amounts mentioned in clause 5” in the event that
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the club does not pay to the player two consecutive installments as described
in article 5 of the said employment contract.
6.
Furthermore, the members of the Chamber took into account that the player
claims not having received the monthly payments of September 2007, October
2007 and November 2007, even though the Respondent was put in default of
the September and October 2007 payments in writing on 8 November 2007.
Therefore, in accordance with articles 5 and 8 of the employment contract, the
player terminated his contract in writing on 4 December 2007 and claims
payment of the outstanding amount of EUR 139’000 plus interest of 5%
accrued since 4 December 2007.
7.
As a next step, and turning their attention to the Respondent, the members of
the Chamber took note of the fact that FIFA received correspondence from a
lawyer who failed to present a power of attorney even after having been
requested to do so. In this regard, according to this lawyer a claim was filed
against the player on 2 January 2008 in accordance with the C Football
Federation’s Regulations and by-laws and proceedings were still pending. No
pertinent documentation was however provided in this regard.
8.
Subsequently, the Chamber remarked that the alleged Respondent’s lawyer
had several times been asked to provide a power of attorney, duly signed by
the C club as well as more information on the claim allegedly lodged by the C
club against the player as to before which body the claim was lodged, what
the precise request was, the other party’s reaction to it and the actual status of
the procedure, along with documentary evidence. No response was received by
FIFA.
9.
In continuation, the Chamber took into account that the Respondent allegedly
engaged a new lawyer, who unfortunately also failed to present a power of
attorney issued by the club in spite of having been requested to do so.
10.
Furthermore, the Chamber took note that FIFA invited the Respondent a final
time via the C Football Association to submit its position on the claim lodged
against it by the player and relevant documentation in support of its position,
but no answer was received thereto.
11.
In this context, the members of the Chamber referred to article 6 par. 2 of the
Procedural Rules in accordance with which parties may appoint a
representative and that a written power of attorney shall be presented. Article
9 of the same Procedural Rules, which article deals with petitions and
statements, also stipulates that a power of attorney of the legal representative
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shall be provided. No reply was received by FIFA to its request for a duly signed
power of attorney along with the club’s position and supporting
documentation with regard to the player’s claim.
12.
Bearing this in mind, the Chamber deemed that the correspondence received
from the club’s alleged first lawyer (cf. point II.7 above) cannot be taken into
consideration. In any way, the Chamber deemed it fit to point out that such
alleged lawyer had also failed to present documentary evidence in support of
his allegations.
13.
In view of the above, the members of the Chamber concluded that the
Respondent had failed to respond to the claim lodged against it by the player
in spite of having been invited to do so on several occasions. Therefore, so the
Chamber, the Respondent had renounced its right to defence and accepted the
player’s allegations.
14.
In continuation, the Chamber then stated that as a general principle of
procedure before the Dispute Resolution Chamber and in accordance with
article 9 par. 3 of the Procedural Rules, if a Respondent does not reply to the
claim of the Claimant, a decision shall be taken on the basis of the facts and
documentary evidence on file.
15.
Turning its attention to the claim of the Claimant as well as the documentation
made available to the Chamber, the Chamber established that the club had
failed to pay the player’s salary during three consecutive months when the
player terminated the employment contract in writing on 4 December 2007,
after having formally put the club in default of payment on 8 November 2007.
16.
Consequently, the Chamber acknowledged that the club had acted in breach
of the employment contract and that the player had just cause when he
terminated the employment contract on 4 December 2007.
17.
The Chamber deemed it fit to point out that article 8 of the employment
contract entitled the player to terminate the relevant contract, without further
notice, in the event of the club failing to remit two consecutive instalments
included in article 5 of the employment contract.
18.
Reverting to the player’s financial claim, the Chamber acknowledged that
article 8 of the pertinent employment contract clearly establishes the
compensation payable by the club to the player in the event of the club acting
in breach of article 5 of such employment contract, i.e. all of the monies
payable to the player in accordance with the said article 5.
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19.
The player, for his part, confirms having received from the club the amount of
EUR 21’000 pertaining to the amounts of EUR 10’000 and EUR 5’000 that fell
due after the medical examination and on 14 August 2007, respectively, as well
as his salary of August 2007 in the amount of EUR 6’000. Therefore, taking into
account the total amount of EUR 160’000 payable to the player in accordance
with article 5 of the employment contract as well as article 8 of the said
employment contract, the player claims payment of the amount of EUR
139’000 plus 5% interest as of 4 December 2007.
20.
In light of all of the above, the Dispute Resolution Chamber decided that the
Respondent is liable to pay the total amount of EUR 139’000 to the Claimant.
21.
The Chamber deemed it fit to clarify that the amount of EUR 139’000 is
considered to be composed of three outstanding salaries (September 2007,
October 2007, November 2007) in the amount of EUR 18’000 and
compensation for the club’s breach of contract in accordance with article 8 of
the employment contract amounting up to EUR 121’000.
22.
In addition, taking into account the player’s claim for payment of interest, the
Chamber decided to award the player 5% default interest p.a. over the
amount of EUR 18’000 as of 4 December 2007.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, the player, T, is partially accepted.
2.
The Respondent, N, has to pay to the Claimant within 30 days as from the date
of notification of this decision the amount of EUR 18’000 plus interest at 5%
p.a. as from 4 December 2007 until the date of effective payment.
3.
The Respondent, N, has to pay to the Claimant compensation for breach of
contract in the amount of EUR 121’000 within 30 days as from the date of
notification of this decision. In the event that this amount of compensation is
not paid within the stated time limit, interest at the rate of 5% p.a. will fall
due as of expiry of the above-mentioned time limit until the date of effective
payment.
4.
In the event that the amounts due to the Claimant in accordance with the
above-mentioned numbers III.2 and III.3 are not paid by the Respondent within
the stated deadlines, the present matter shall be submitted upon request to
the FIFA Disciplinary Committee for its consideration and decision.
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5.
Any further request filed by the Claimant is rejected.
6.
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 directive
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