Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 2 November 2005,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Jean-Marie Philips (Belgium), Member
Ivan Gazidis (United States), Member
Mick McGuire (England), Member
Philippe Piat (France), Member
on the claim presented by
Player A,
as Claimant
against
Club B,
as Respondent
regarding a dispute about
the employment contract concluded between the parties.
I.
Facts of the case
1.
On 1 July 2004, the player A and the club B signed an employment contract valid
from 1 July 2004 to 31 December 2004, stipulating a monthly salary of USD
15,000 (hereinafter; contract A).
2.
On the same date, the same parties signed a second employment contract with
the same duration, stipulating a monthly salary of USD 20,000, as well as a
signing on fee of USD 100,000 due on 15 July 2004 and of USD 30,000 due on 15
August 2004 (hereinafter; contract B).
3.
On 10 January 2005, the player submitted the following claim to FIFA against the
club:
o Salaries from July to December 2004
(USD 35,000/month)
USD 210,000
o Signing on fee
USD 130,000
o Match bonus for match on 22 August 2004
USD 5,000
o Total
USD 345,000
o
o
Received so far from the club
Claim
USD 45,000
USD 300,000
4.
On 16 March 2005, in reply to the player’s claim, the club stated that the player
was paid the salaries from 1 July to 15 September 2004 in the total amount of
USD 37,500.
5.
The club also stated that the salaries from 16 September to 31 December 2004 in
the total amount of USD 52,500 were still due.
6.
The club enclosed only a copy of the contract A to its statement.
7.
On 2 June 2005, after a change in the managing board of the club, the club
clarified its position. In this regard, the club in particular acknowledged that the
player’s monthly salary was USD 35,000, and that he was entitled to a signing on
fee in the amount of USD 130,000.
8.
Moreover, the club enclosed payrolls signed by the player, according to which he
was paid the total amount of USD 210,000.
9.
Finally, the club stated that the signing on fee of USD 130,000 was paid to the
player’s representative, Mr. X.
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Player A/Club B
10.
On 13 July 2005, in response to the club’s new position, the player first stated
that the club obviously acknowledged his right to a monthly salary in the total
amount of USD 35,000 and a signing on fee of USD 130,000.
11.
Moreover, the player stated that the club did not contest his claim for a match
bonus in the amount of USD 5,000.
12.
With regard to the payrolls, the player agrees having signed the payrolls dated
11 and 19 August 2004 over the total amount of USD 37,500. With regard to the
signatures on the other payrolls over the total amount of USD 172,500, he
maintains that these signatures are falsifications, and reiterates that he did not
receive the relevant amounts.
13.
With regard to the payment of the signing on fee to Mr. X, the player states that
he never gave instructions to the club to make payments to this person.
Moreover, the player claims never having had any relationship of agency or
otherwise with Mr. X and never having received money from him.
14.
On 11 August 2005, asked for its final position, the club did not contest the
player’s statements.
15.
Moreover, despite having been requested to do so by the FIFA-Administration,
the club did not submit the originals of the mentioned payrolls, and declared
that it was not in a position to submit them, since it was forbidden by its
national law to submit original documents to judicial committees. The club
instead sent the documents to its interior ministry for a verification of the
player’s signatures.
16.
Since then, and despite having been asked once again by the FIFAAdministration to remit the relevant original documents, no further information
was received from the club with regard to the originals of the payrolls.
II.
Considerations of the Dispute Resolution Chamber
1.
The members of the Dispute Resolution Chamber were summoned by the
Chairman to pass a decision on the present matter pursuant to Art. 1 point 6) of
the Rules Governing the Practice and Procedures of the Dispute Resolution
Chamber.
2.
The deciding body started its deliberations by indicating that, as established in
Art. 42 § 1 lit. (b) (i) of the FIFA Regulations for the Status and Transfer of Players
(hereinafter: the Regulations), it falls within the purview of the Dispute
Resolution Chamber to determine whether one of the parties has committed a
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Player A/Club B
unilateral breach of contract without just cause. In the case that the employment
contract was breached by a party, the Dispute Resolution Chamber is responsible
to verify and decide whether this party is accountable for outstanding payments
and compensation.
3.
In view of the above, the Dispute Resolution Chamber concluded that it was
competent to decide on the present litigation.
4.
The Chamber then acknowledged the documentation contained in the file and
took note in particular of the financial obligations stipulated in the two
contracts signed by the parties. In this respect, the Chamber noted that in
accordance with contract A, the player was entitled to USD 90,000 in total on
account of salaries. Cumulating the two contracts, the player would have been
entitled to USD 340,000 on account of salaries. Moreover, the Chamber noted
that the player indicates having received from the club so far the amount of USD
45,000.
5.
As far as the club’s answer to this claim is concerned, the Chamber noticed first
of all that the two submissions of the club dated 16 March 2005 and 2 June 2005
were contradictory. On 16 March 2005, the respondent declared that the player
was paid the amount of USD 37,500, that therefore the amount of USD 52,500
was still outstanding. By this, the club implied that only contract A was to be
considered.
6.
On 2 June 2005 however, the club stated that the player was paid the amount of
USD 340,000, that therefore the club had respected the two contracts and that
no payment was outstanding. The Chamber took note as well of the payment
receipts submitted by the club, which should corroborate the club’s position.
7.
On account of this, the Chamber noticed that the player agreed having signed
the payment receipts presented over the total amount of USD 37,500. With
regard to the signatures on the other payment receipts over the total amount of
USD 172,500, the Chamber noticed the player’s position that these signatures
were falsifications and that he did not receive the relevant amounts. Moreover,
the Chamber noted that the player stated with regard to the payment of the
signing on fee to Mr. X, that he never gave instructions to the club to make
payments to this person, never had any relationship of agency or otherwise with
Mr. X and never received money from him.
8.
Finally, the Chamber acknowledged that the club never provided FIFA with the
originals of the relevant payment receipts, despite having been expressly
requested to do so several times.
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Player A/Club B
9.
On account of the above, the Chamber stated that as a general rule, in
application of the legal principle pacta sunt servanda, clubs have to pay the
players’ contractual salaries and signing on fees.
10.
In this regard, the Chamber stated that the player’s claim for USD 340,000 was
based on the salary clause of the two employment contracts concluded with the
club, as well as the clause for the signing on fee in the contract B.
11.
The members of the Chamber then concurred that prior to continuing with the
considerations of this case, they needed to address the prejudice question as to
which contract shall be taken into account in the case at hand, and in
consequence, which is the salary the player was entitled to from the club.
12.
In this regard, the members of the Chamber referred to the fact that in the club’s
submission dated 2 June 2005, the club stated that the player was paid the
amount of USD 340,000, that therefore the club had respected the two contracts.
13.
In view of this, the Chamber stated that in accordance with the club’s position, in
the present case, both employment contracts had to be applied cumulatively.
14.
Therefore, the player’s salaries for the entire duration of the contract was USD
210,000, and the signing on fee was USD 130,000.
15.
In continuation, the Chamber stated that that the respondent had not
forwarded sufficient evidence that it had duly respected its financial obligations
towards the player and paid the amount claimed by the player.
16.
In particular, the authenticity of some payment receipts, by means of which the
player allegedly acknowledged the receipt of USD 172,500 from the club on
account of salaries, was challenged by the player. In this regard, the respondent
did not submit the necessary originals of these documents to counter this
challenge.
17.
Hence, the Chamber concluded that the amount of USD 172,500 to be paid by
the club to the player on account of salaries is to be considered as not paid.
18.
With regard to the clubs position that the signing on fee in the amount of USD
130,000 was paid to Mr. X, who allegedly was entitled to receive this amount for
the claimant, the Chamber stated that the respondent did not provide any
evidence that the player gave instructions to the club to make payments to this
person or that the player had any relationship of agency or otherwise with Mr.
X.
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Player A/Club B
19.
Therefore, the Chamber stated that the amount of USD 130,000 on account of
the signing on fee was never paid to the player. Should it be true that the
amount in question was indeed paid to Mr. X for player A, the Chamber stated
that there was no legal basis which allowed to the club to fulfil its financial
obligations towards the player by paying a third person, would it be Mr. X or any
other third person.
20.
Therefore, the Chamber concluded that the amount of USD 130,000 claimed by
the player from the club on account of the signing on fee is to be considered as
not paid as well.
21.
Finally, the Chamber addressed the player’s claim for USD 5,000 on account of a
match bonus for match on 22 August 2004, and in this regard, took note of the
fact that the club has never contested such claim.
22.
Therefore, this amount is to be considered still due by the club to the player as
well.
23.
Before coming to its final conclusion, the Chamber stated that the club had not
presented any reason justifying the non-payment of the amounts in question to
the player.
24.
Therefore, in application of the legal principle pacta sunt servanda, the Chamber
decided that the club B is owing to player A on account of outstanding salaries,
signing on fees and bonuses the total amount of USD 307,500.
25.
Since the player claimed in front of FIFA only for the amount of USD 300,000,
and in application of the principle no ultra petita, the Chamber decided that the
club B has to pay to the player A the amount of USD 300,000 on account of
salaries, signing on fees and bonuses.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the player A is accepted.
2.
The club B has to pay the amount of USD 300,000 to the player A.
3.
The amount due to the player A has to be paid by the club B within the next
30 days as from the date of notification of this decision.
4.
If the aforementioned amount is not paid within the stated deadline, an interest
rate of 5% per year shall apply.
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Player A/Club B
5.
If the aforementioned amount is not paid within the aforementioned deadline,
the present matter shall be submitted to FIFA’s Disciplinary Committee, so that
the necessary disciplinary sanctions may be imposed.
6.
The player A is directed to inform the club B immediately of the account number
to which the remittance is to be made, and to notify the Dispute Resolution
Chamber of every payment received.
7.
According to art. 60 par. 1 of the FIFA Statutes this decision may be appealed
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 10 days of receiving notification of this decision
and has to contain all elements in accordance with point 2 of the directives
issued by the CAS, copy of which we enclose hereto. Within another 10 days
following the expiry of the time limit for the filing of the statement of appeal,
the appellant shall file with the CAS a brief stating the facts and legal arguments
giving rise to the appeal (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Château de Béthusy
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:
Dr. Urs Linsi
General Secretary
Encl.
CAS directives
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Player A/Club B