Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 November 2004,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Jean-Marie Philips (Belgium), member
Mario Gallavotti (Italy), member
Philippe Piat (France), member
Theo van Seggelen (Netherlands), member
on the claim presented by
the player, X, Tunisia,
as Claimant
against
Club Y, Libya,
as Respondent and Counterclaimant
regarding a contractual dispute between the player and the club,
Facts of the case
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On 14 July 2002 the player X and the club Y signed an employment contract for two
sportive seasons.
According to this contract, during the 2002/03 season the player is entitled to a fee of
LYD 60,000 payable as follows:
o LYD 10,000 on the date of signature of the contract
o LYD 10,000 at the end of the first part of the championship (i.e. 18.01.03)
o LYD 10,000 at the half of the second part of the championship (i.e. around
15.04.03)
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o Monthly salary of LYD 3,000, from which amount LYD 500 is payable in Libya
and LYD 2,500 in Tunisia
Moreover, the player is entitled to four air flight tickets Jamahiriya-Tunis-Jamahiriya
during the sports season.
The employment contract also specifies the conditions under which the player shall be
entitled to receive bonuses or premiums.
Article 14 of the employment contract stipulates that the contract is concluded for a
period of 2 seasons and that at the end of the first season the parties shall find
agreement on the revision of the value of the contract for the second season.
According to article 16 of the employment contract any disputes between the parties
shall fall under the competence of Libyan and Tunisian jurisdiction.
On 5 November 2003 the player turned to FIFA claiming that after the end of the first
season, the club acted in breach of the employment contract without just cause.
That is, according to the player, after the end of the first season he returned to Tunisia for
his holidays, where he has been awaiting a call or a letter from the club in respect of the
(contractual) details for the second season (2003/04).
X affirms that, the club having failed to contact the player, he returned to Libya on 15
August 2003 in order to join the club.
According to X, he was then verbally informed by the club that it no longer wished to
make use of his services.
Furthermore, he affirms having received, on 21 August 2003, a written attestation issued
by the club on the same day “to whom it may concern”, by means of which the club
confirms that the player is free to register with any other club outside of the Libyan
territory. In addition, in the same attestation the club confirms that the document was
issued at the player’s request and in accordance with the agreement concluded between
the parties involved. Finally, according to the same document, the parties have no
financial obligations towards each other.
The player affirms that he did not agree with the contents of this attestation and that he
has tried to receive an explanation from the club while the club was on a training camp in
Tunisia. In this respect, X submitted a document issued by a Tunisian notary public, by
means of which the latter confirms that, on 27 August 2003, the club has refused to
receive the player stating that negotiations with the player would take place in Libya.
X affirms having tried to join the club in Libya a third time on 30 August 2003 in order to
fulfil his contractual obligations, but the club again refused to receive him.
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The player asserts having put the club in default of its contractual obligations by
registered mail in September 2003.
X maintains that the contract has been validly concluded for a two years’ period of time
and could only be terminated by mutual consent or for reasons given by law.
The player points out that according to the said article 14 the negotiations at the end of
the first season would only relate to the revision of the value of the contract for the next
season.
According to the player and referring to the above-mentioned articles 14 and 16 of the
employment contract, in accordance with Tunisian law, all conditions have been fulfilled
in order to designate the termination of the contract by the club as abusive.
The player is of the opinion that, in addition to the relevant clauses in the contract and to
the FIFA Regulations, he may invoke Tunisian national law.
He claims that in accordance with Tunisian law he would be entitled to receive
compensation equalling the amount of salaries which would have been payable to the
player until the expiry of the employment contract at the end of the 2003/04 season (LYD
60,000), plus an amount of money for damages as well as an amount of compensation
for “moral prejudice” not less then LYD 30,000.
The player further maintains that the club has also acted in breach of the relevant FIFA
regulations.
According to the player, he is entitled to submit the present claim to the competent
deciding body of FIFA.
In the light of the above, on the basis of articles 21, 23.2 and 42 of the FIFA regulations
for the status and transfer of players, the player claims payment of compensation for
breach of contract to the amount of LYD 60,000 (salaries for the 2003/04 season) and
compensation for moral damages to the amount of LYD 30,000.
On 17 December 2003, the player signed an employment contract with a Tunisian club
valid until 30 June 2004.
The club, for its part, maintains that it was agreed between the parties to revise the
contract value for the second season at the end of the first sport season. The club is of
the opinion that according to article 14, the contract will not be renewed for the second
season unless the parties find agreement.
Furthermore, the club asserts that according to Libyan labour law, contracts concluded
for a pre-determined period of time (“duration-limited”) automatically expire at the end
of the same period of time.
Finally, the club points out that the employment contract has been terminated at the
player’s request.
The Libyan club submitted a copy of a power of attorney, which was signed by the player,
apparently in early July 2002, by means of which X authorised Z to act on his behalf in all
administrative, legal and financial procedures in Libya during the 2002/03 season.
Y submitted a copy of a undated addendum to article 9 of the employment contract
(which article deals with a financial penalty in the event of a decrease in the player’s
performance resulting in his non-selection for a match), which specifies under which
conditions the club would be entitled to, inter alia, terminate the contract in the event of
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a continuous decrease in the player’s technical and physical performance. This
document was signed by the club and the aforementioned Y.
The club maintains that as early as in May 2003, the player was informed of the decrease
in his performances and that the club had decided not to make use of his services for the
second season. In this respect, a document signed by the aforementioned Z has been
presented by the club.
However, according to the club, it made an offer to the player, with which he was
allegedly not satisfied. Therefore, he allegedly asked the club to end his employment
relationship with the club.
On 23 August 2003 the Libyan club issued a document “to whom it may concern” in
which the club states that the player refused to accept the club’s offer pertaining to the
revision of the contract for the second season corresponding to his performance and that
he has been released as from 21 August 2003. This document was signed by the
aforementioned Z as the player’s attorney.
Another document dated 27 August 2003 was issued by the club pertaining to the
release of the player in question indicating that the player and the club have no
administrative or financial claims towards each other. This document was signed by the
said Z as the “legal attorney” of the player.
In the light of the above, the club rejects the claim put forward by the player.
Referring to article 11 of the relevant employment contract, the club asks that the player
pays back all monies that he received from the club in addition to an amount of money as
compensation.
The player asserts that he has been one of the better players of the team throughout the
season and to corroborate this fact, he submitted a written statement by the coach, A.
As regards the aforementioned Z, the player points out that the relevant power of
attorney is limited in time, i.e. until the end of the 2002/03 season, and that it has
become void as from the moment that the player signed the relevant employment
contract with the club, i.e. since 2002. Consequently, according to the player, all
documents signed by this Z after the year 2002 must be considered null and void and do
not bind the player. The player also points out that he has had no knowledge of the
contacts between Z and the Libyan club.
The player insists that according to article 9 of the employment contract a decrease in his
performance would lead to certain consequences, which apparently have not been
applied by the club. Furthermore, taking into consideration the contractual clauses, a
decrease in the player’s performance can be no motive for the rescission of the contract.
Considerations of the Dispute Resolution Chamber
Taking into account article 16 of the relevant employment contract, the members of the
Chamber deemed that, firstly, the question as to whether the Chamber has jurisdiction in the
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present matter must be answered. In this regard, the members of the Chamber agreed that in
the absence of a national sports arbitration tribunal composed of members chosen in equal
numbers by players and clubs as well as an independent chairman (cf. Article 42 of the
aforementioned Regulations), the Dispute Resolution Chamber of the FIFA Players’ Status
Committee is competent to deal with a dispute, even if written agreements signed between
the parties involved in the dispute contain a clause by means of which the jurisdiction of
another body is chosen.
Consequently, the members of the Chamber proceeded to confirm that in accordance with
Article 42 of the FIFA Regulations for the Status and Transfer of Players the Chamber is
competent to deal with the present matter.
It was duly noted that according to the player, the club has acted in breach of the
employment contract given that the club has failed to respect the terms of the contract
pertaining to the second sportive season. That is, X maintains that after the end of the first
sportive season the club verbally informed him that it was no longer interested in making
use of his services. Thereafter, on 21 August 2003, the club issued a written attestation
confirming that the player was free to sign on with another club outside of the Libyan
territory and that the parties do not have any mutual claims. X contests the contents of this
document and he has tried to receive an explanation from the club, allegedly in vain. In
September 2003, the player put the club in default of the execution of its obligations and he
claims compensation for the alleged abusive termination of the employment contract.
Y, for its part, refutes the player’s claim asserting that the player was informed in writing as
early as in May 2003 of the fact that the club would consider X free from any obligations as
from the end of the 2002/03 season. Furthermore, on 23 August 2003, the club issued
another document stating, inter alia, that the player was released as from 21 August 2003.
These two documents were signed by the player’s representative, Z. In addition, according to
the Libyan club, the parties agreed to revise the contract value for the second season at the
end of the first sporting season. In accordance with the club’s interpretation of article 14, the
employment contract would not be renewed for the second season unless the parties find
agreement.
Y has lodged a counter-claim, in accordance with which the Libyan club asks that the player
be obliged to pay back all monies that he received from the club in addition to an amount of
money as compensation. In this respect, the club refers to article 11 of the employment
contract.
With respect to the counter-claim lodged by the Libyan club, the members of the Chamber
duly studied article 11 of the employment contract, in accordance with which the player is
obliged to reimburse certain monies to the club in the event of the player having infringed
upon the terms of the contract. In the light of the fact that this clause is not mutual, i.e. the
club being obliged to compensate the player in the event of the club acting in breach of the
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contract, the Chamber concluded that such cause cannot be considered valid. Consequently,
the Chamber decided to reject the counter-claim lodged by the club, Y.
The Chamber turned to the question as to whether the relevant employment contract can be
considered valid for a two years’ period of time. That is, the Chamber acknowledged that the
employment contract contains all elements required in order for it to be binding on the
parties for the first season (e.g. salary, contract duration, parties, etc.). However, the same
contract does not include any salary for the subsequent season. The members agreed that
the inclusion of the player’s salary, payable in compensation for the services rendered, in
the contract is a prerequisite in order for the contract to be considered valid and binding
upon the parties involved for the specific period of time. Taking into consideration the
wording of article 14, the members of the Chamber unanimously agreed that the relevant
employment contract must be considered valid and binding upon the parties for the period
of one year, with the option for both parties to extend it on condition that a mutual
agreement be found. From the above, it can be noted that the Libyan club did not wish to
prolong the contractual relation with X. Consequently, the Chamber concurred that the
contractual relationship between the parties involved ended at the conclusion of the first
sports season.
As regards X’s position with respect to above-mentioned Z, the Chamber took note that Z had
in fact been authorised by the player to act on his behalf during the 2002/03 sports season.
X does not refute having authorised this person to represent him, but according to the
player, Z’s representation ended after he signed his contract with the Libyan club in 2002.
After careful study of the relevant power of attorney, the Chamber decided to reject X’s
argument in this respect, since the power of attorney does not include any such limitation in
time or any other precision in this regard. The player has pointed out that he had no
knowledge of the contacts between Z and the Libyan club. In this regard, the Chamber
agreed that the Libyan club cannot be held liable for the apparent miscommunication
between the player and his representative.
In the light of the above, the Chamber decided to reject the claim lodged by the player, X.
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Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, X, is rejected.
2.
The counter-claim of Club Y, is rejected.
3.
According to art. 60 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 10 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 l’Elysée 28
1006 Lausanne
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:
Urs Linsi
General Secretary
Enclosed: CAS directives
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