Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 9 November 2004,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Philippe Diallo (France), member
on the claim presented by
the player, X, Serbia and Montenegro,
as Claimant
against
FC Y, Russia,
as Respondent
regarding a contractual dispute between the player and the club,
Facts of the case
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After the rescission of the player’s contract with his former club, A, an employment
contract was signed between X, born on 12 September 1977, and FC Y on 16 July 2004.
This contract is valid for a three years’ period of time as from 15 July 2004, more
precisely, until 30 June 2007.
According to the employment contract, the player X is entitled to receive USD 200,000
upon the signing of the contract as well as the amount of USD 100,000 payable once a
year before the start of the new season. Furthermore, the player X is entitled to a
monthly payment of USD 21,666 as well as bonuses, lodging, a car, and 4 air tickets per
year.
As regards the aforementioned USD 200,000 payable upon the signing of the contract, it
must be noted that the original text of the relevant clause appears to indicate the
amount of USD 100,000 but has been amended by hand and now reads USD 200,000,
which amendment was countersigned.
On 27 July 2004 the Russian Football Union requested the issuance of an international
registration transfer certificate (IRTC) from the Football Association of Serbia and
Montenegro.
On the same day, the relevant certificate was issued by the said Association on behalf of
the Russian Football Union.
On 3 August 2004, the player contacted the Russian Football Union claiming that FC Y
did not respect its contractual obligations.
On the same day, the player lodged his claim at FIFA.
According to X, only after 3 to 4 days after having commenced his employment, the
coach informed him, without any justification, that he would not be making use of the
player’s services. In addition, the coach allegedly forbade him to participate in and be
present at the team’s training.
The player adds that he has received no written confirmation by the club of the above
circumstances.
X has indicated that he left Russia on 1 August 2004.
The player wishes that FC Y be ordered to fulfil its contractual obligations.
Should FC Y refuse to do so, the player claims the unilateral breach of contract by the
club without just cause and he wishes to be able to transfer to another club without any
compensation being payable.
In addition, he claims compensation for breach of contract to the total amount of USD
1,079,976 equalling the full value of his employment contract (3 x USD 100,000 and 36
months x USD 21,666).
As stated above, X’s contract indicates that the amount of USD 200,000 is payable upon
the signing of the contract, however, in accordance with the player’s breakdown of his
financial claim, X claims payment of three yearly fees amounting to USD 100,000 each.
No reference is made by the player to an amount of USD 200,000.
On 19 August 2004, the FIFA administration invited FC Y to present its response to the
claim lodged by the player.
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In reply, the Russian Football Union maintains that the player in question never signed a
contract with FC Y. Allegedly, X refused either to play for or sign a contract with FC Y
claiming that the club was not at his level.
The Russian Football Union further maintains that the player was not registered with the
Union.
The FIFA administration has received no reply from FC Y, either directly or via the Russian
Football Union.
Considerations of the Dispute Resolution Chamber
The members of the Dispute Resolution Chamber were summoned to pass a decision on this
matter by the Chairman pursuant to Art. 1 point 6) of the Rules Governing the Practice and
Procedures of the Dispute Resolution Chamber.
The members of the Chamber firstly proceeded to confirm that in accordance with Article 42
of the FIFA Regulations for the Status and Transfer of Players (edition September 2001) the
Chamber is competent to deal with the present matter.
As established in Article 42 §1(b) of the Regulations, it falls within the competence of the
Dispute Resolution Chamber to determine whether one of the parties has committed a
unilateral breach of contract without just cause.
According to the player, the club failed to fulfil its contractual obligations 3 to 4 days after
the commencement of his employment at the Russian club, when the coach informed him
that he would not be making use of the player’s services and that the player was not allowed
to participate in the team’s training. X demands that the club be ordered to fulfil its
contractual obligations or, should it refuse to do so, that the club be sentenced for having
committed a unilateral breach of contract without just cause. In addition, X asks that he be
awarded an amount of compensation for breach of contract equalling the full value of his
employment contract, i.e. until its date of expiry on 30 June 2007.
In the light of the position put forward by the Russian Football Union, denying the existence
of a contractual relation between FC Y and the player X, the members agreed that the
Chamber should analyse the document which has been presented by the player as the
employment contract that was signed by and between himself and the Russian club. After a
thorough analysis, the members of the Chamber concluded that the document presented by
Mr. X to this end indeed constitutes an employment contract containing the relevant main
elements, such as parties involved, salary, period of validity, position of the player, as well
as the parties’ signature and the club’s stamp.
In this context, the members of the Chamber stressed that the Russian Football Union has
requested and received an IRTC from the association of the player’s former club, which can
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be regarded as a clear indication that an employment relationship had been entered into by
Mr. X and FC Y.
Taking into consideration the position conveyed to the FIFA administration by the Russian
Football Union, in accordance with which FC Y manifestly denies the existence of a
contractual relation between the player and the club in question, the Chamber agreed that
the player’s first request, i.e. to order the club to fulfil its contractual obligations, has
become superfluous. Therefore, the Chamber decided to focus on the question as to whether
FC Y has committed a breach of contract and, if yes, with or without just cause.
As stated above, the Chamber has concluded that a valid employment contract has been
entered into by and between the parties involved in the case at hand. Furthermore, the
Chamber deemed that the circumstance whether or not the player was registered with the
Russian Football Union must be considered irrelevant, as the registration, in general, does
not fall within the scope of a player’s responsibilities and obligations. For these reasons, the
members unanimously decided that the Chamber has to fully dismiss the arguments put
forward in the club’s defence.
Taking into account all of the above, the club is found to have committed a unilateral breach
of the employment contract without just cause. Consequently, the player is entitled to
receive compensation for breach of contract.
In the light of all of the above, articles 21§1(a), 22 and 23§2(a) of the FIFA Regulations for
the status and transfer of players are applicable to the present matter.
As regards the award of financial compensation payable to the player in accordance with
article 22, the Chamber took into consideration that the relevant employment contract does
not contain any clause pertaining to compensation payable to either of the parties in the
event of the early termination of the employment relationship. Furthermore, the members
agreed that in the light of the fact that the player is free to sign on with the club of his choice,
he is able to and has the obligation to mitigate damages. The members of the Chamber took
into account that although the relevant employment contract indicates that the amount of
USD 200,000 is payable to the player upon the signing of the contract, X has put forward a
financial claim based, inter alia, on a fee of USD 100,000. Departing from the principle that
the award shall not exceed the claimant’s claim, the Chamber agreed that the amount of USD
100,000 shall be taken into consideration when determining the amount of compensation
payable to the player. Considering that the breach occurred at the beginning of the contract,
only a few days after the arrival of the player, and taking into account the remuneration that
the player was due to receive under the terms of the employment contract, i.e. salary,
signing-on fee and bonuses, the Chamber concluded that a compensation amounting to USD
200,000 is adequate.
As regards the player’s wish to be able to transfer to another club without any compensation
payable to FC Y, the Chamber draws the attention of X to article 20 of the FIFA Regulations for
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the Status and Transfer of Players, in accordance with which no training compensation shall
be payable when a player over the age of 23 changes clubs.
The Chamber further considered that sports sanctions shall be applied in conformity with
article 23§2(a) of the aforementioned Regulations. In accordance with the interpretation
given by the CAS as body of appeal in a previous decision, the ban shall be set in at the point
of time when the decision that a breach occurred has been reached and notified to the
parties concerned.
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Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, X, is partially accepted.
2.
The Respondent, FC Y, has to pay the amount of USD 200,000 to the Claimant.
3.
The amount due to the Claimant has to be paid by the Respondent within 30 days as
from the date of notification of this decision.
4.
In the event that the debt of the Russian club is not paid within the stated deadline,
an interest rate of 5% per year will apply as of expiry of the aforementioned deadline.
5.
If the sum of USD 200,000 is not paid within the aforementioned deadline, the
present matter shall be submitted to the FIFA Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
6.
In accordance with article 23§2(a) of the Regulations, the sanction imposed on FC Y is
a ban on registering any new player, either nationally or internationally, until the
expiry of the second transfer window following the date of notification of the present
decision.
7.
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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