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 (U.A.E.), member
on a matter between the player
M,
as Claimant
and the club,
O,
as Respondent
regarding an employment related contractual dispute
arisen between the player and the club.
I.
Facts
1.
On 1 January 2008, the I player M (hereafter: the Claimant) signed an employment
contract with the C club O (hereafter: the Respondent) for the period from 1
January 2008 until 30 May 2009. The C Football Association confirmed that the
Claimant had been registered with the club on 3 January 2008.
2.
This employment contract stipulated that the Claimant would:
- receive a total sum of EUR 30,000 over the contractual period (from 1 January
2008 to 30 May 2009), payable in 15 instalments of EUR 2,000 (point 3 i);
- be free to transfer to another club without the payment of any compensation
if the club delayed payment [of salary] by more than three months (point 3 ii).
The annexe to the contract concluded on 1 January 2008 also stipulated that:
- the player would receive a total sum of EUR 37,500 over the contractual
period (from 1 January 2008 to 30 May 2009), payable in 15 instalments of
EUR 2,500 (point 1 i);
- that the player and his wife would receive a return flight from C to A for each
season (point 4).
3.
On 29 May 2008, the Claimant lodged a claim with FIFA against the Respondent to
recover allegedly outstanding salary payments and to request payment of:
- EUR 16,000 in outstanding salary, corresponding to his monthly salaries for
February, March and April (3 x EUR 2,000, 3 x EUR 2,500) and part of his salary
for January 2008 (EUR 2,500);
- EUR 58,500 in compensation and interest, corresponding to the monthly salaries
(EUR 4,500) owed to him until the end of the contract on 30 May 2009;
- EUR 1,000 for a return flight for his wife from C to A;
- an appropriate sum for the legal expenses.
4.
The Claimant put the Respondent in default for the amount of EUR 16,000 by
correspondence of 2 May 2008 and formally terminated his employment contract
in a letter dated 12 May 2008. He claimed that the Respondent had not honoured
its contractual obligations as from the start of the contractual period, with the
outstanding amount having reached EUR 16,000 by the date of termination, and
that he had therefore had just cause for terminating the contract. Moreover, the
Claimant claimed that the employment contract had indeed stipulated his right to
terminate his employment contract by virtue of a clause that stated that he would
be free to leave if he had not been paid for three months (cf. above).
5.
The Respondent has not submitted a statement in relation to the case at hand,
despite repeated requests by 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 29 May 2008. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2005; hereinafter: 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 I player and a C 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 29 May 2008,
the current version of the regulations (edition 2008; 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.
The Chamber noted that the Respondent, despite having been solicited to do so
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 Dispute
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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. With regard to the
contractual basis existing between the parties of the dispute, the Chamber wished
to stress that the annexe concluded on 1 January 2008 constituted an integral part
of the employment contract concluded the same day.
9.
In this respect, the Chamber acknowledged that the employment contract
stipulated that the Claimant would receive a total sum of EUR 30,000 over the
contractual period (from 1 January 2008 to 30 May 2009), payable in 15
instalments of EUR 2,000 (point 3 i). Furthermore, the Chamber noted that the
annexe to the contract also stipulated that the Claimant would receive a total sum
of EUR 37,500 over the contractual period (from 1 January 2008 to 30 May 2009),
payable in 15 instalments of EUR 2,500 (point 1 i), and that the Claimant and his
wife would receive a return flight from C to A for each season (point 4).
10.
The Chamber noted that in the case at stake the Claimant alleges not having
received his salaries for the months of February, March and April (3 x EUR 2,000, 3
x EUR 2,500) and part of his salary for January 2008 (EUR 2,500), amounting to
EUR 16,000 in outstanding salary. Due note was taken that the Claimant put the
Respondent in default for the amount of EUR 16,000 by correspondence of 2 May
2008 and that he formally terminated his employment contract by a letter dated
12 May 2008.
11.
On account of all of the above and taking into consideration that the Respondent
did not provide any elements that would lead to another conclusion, the Chamber
decided that the Respondent had breached the employment contract concluded
with the Claimant and that they were not able to detect a just cause for not
paying the Claimant’s salaries for the relevant period. Therefore, the Chamber
determined that the Respondent has to pay EUR 16,000 to the Claimant.
12.
Furthermore, the Chamber concluded that the Respondent had breached the said
employment contract without just cause and that the contract was to be
considered as terminated as from 12 May 2008. Consequently, taking into
consideration art. 17 par. 1 of the Regulations and the constant jurisprudence of
the Dispute Resolution Chamber, the Chamber decided that the Claimant is
entitled to receive an amount of money as compensation in addition to any
outstanding payments on the basis of the employment contract.
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13.
In this respect, the Chamber noted that the Claimant asks for EUR 58,500 as a
compensation, allegedly corresponding to the monthly salaries (EUR 4,500) owed
to him until the end of the contract on 30 May 2009. However, the Chamber
pointed out that the employment contract stipulated that the Claimant would
receive a total sum of EUR 30,000 over the contractual period (from 1 January
2008 to 30 May 2009), payable in 15 instalments of EUR 2,000 and that the annexe
to the contract also stipulated that the Claimant would receive a total sum of EUR
37,500 over the contractual period (from 1 January 2008 to 30 May 2009), payable
in 15 instalments of EUR 2,500. As a consequence, the Chamber emphasised that
the entire contract value amounts to 15 instalments of EUR 4,500, of which a part
was not claimed (January 2008, EUR 2,000) or corresponds to outstanding salaries
(parts of January, February, March, April 2008). Therefore, the rest value of the
contract corresponds to 11 instalments of EUR 4,500 each and amounts to a total
of EUR 49,500. Consequently, and taking into account that the Respondent failed
to fulfil its obligations as of the beginning of the contractual relationship, the
Chamber decided that it was appropriate to award the Claimant a compensation
in the amount of EUR 49,500 corresponding to the rest value of the employment
contract concluded with the Respondent.
14.
Furthermore, the Chamber granted the request of the Claimant to be awarded
EUR 1,000 for a return flight for his wife from C to A, the entitlement finding its
basis in par. 4 of the annexe to the employment contract concluded between the
parties of the present dispute.
15.
With respect to the Claimant’s request that the Respondent shall pay an
appropriate sum for the legal expenses, the Chamber decided to reject the
relevant request in conformity with art. 15 par. 3 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber,
which establishes that no procedural compensation shall be awarded in
proceedings of the Dispute Resolution Chamber.
16.
Finally and on account of all of the above, the Chamber concluded that the
Respondent has to pay the total amount of EUR 66,500 to the Claimant.
* * * * *
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III.
Decision of the Dispute Resolution Chamber
1.
2.
The claim of the Claimant, M, is partially accepted.
The Respondent, O, has to pay to the Claimant, M, the amount of EUR 16,000 as
outstanding salaries, EUR 49,500 as compensation and EUR 1,000 for a flight ticket
within 30 days as from the date of notification of this decision.
Any further claims lodged by the Claimant are rejected.
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 request, to FIFA’s Disciplinary
Committee so that the necessary disciplinary sanctions may be imposed.
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.
3.
4.
5.
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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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