Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 November 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Mario Gallavotti (Italy), member
Zola Majavu (South Africa), member
Michele Colucci (Italy), member
Rinaldo Martorelli (Brazil), member
on the claim presented by
the player, X, A,
as Claimant
against
the club, Y, B,
as Respondent
regarding an employment-related
dispute between the player and the club
I.
Facts of the case
1.
In February 2006, the player X (hereinafter: the Claimant or the player) was loaned
from the club C to the club Y (hereinafter: the Respondent or the club). In this
context, the Claimant and the Respondent concluded an employment contract
dated 1 February 2006 and valid as of the same date until 30 June 2006.
2.
According to the labour agreement concluded with the Respondent, the Claimant
was to receive a monthly salary of BBB 8,300. Furthermore, art. 6.2. of the said
contract reads as follows.
“The Club shall be entitled to set forth different systems of bonuses, stimulating
extra payments, allowances, and other similar payments. The amounts and order
of such payments are regulated by the corresponding documents of the Club,
signed by the General Director. According to this, any payments to the Football
Player, besides the official salary, are considered remunerations for work and are
paid in accordance with the article 191 of the Labour Code of B”.
3.
In connection with said labour contract, the parties signed a further agreement
(“Additional Agreement”), also dated 1 February 2006, which reads, inter alia, as
follows:
“1. For the bona fide fulfilling of the obligations, high sport results, professional
sport skill, individual contribution to the high sport results of the football team Y,
the Club in the accordance with the article 191 of the Labour Code of B determine
the following system of awarding personal bonuses:
before 01.03.06
100,000 USD
before 20.04.06
50,000 USD
before 20.05.06
50,000 USD
before 20.06.06
50,000 USD
before 20.07.06
50,000 USD
[N.B. In the version presented by the player, the above-mentioned due dates for
the instalments of USD 50,000 each had been amended in handwriting to
20.03.06, 20.04.06, 20.05.06 and 20.06.06, respectively]
9. In case of the delay of the Football Player to the team’s disposition for more
than two days the Football Player will be subject of reduced awarding bonuses in
rate of the monthly personal bonus”.
4.
On 21 August 2006, the player submitted a formal complaint against the
Respondent to FIFA and held that, from the total amount of bonuses due to him
on the basis of the Additional Agreement, he had only received USD 100,000 in
Player X / Club Y
2
April 2006. The player asserted not having received the four instalments of USD
50,000 each which, according to the player, fell due on 20 March 2006, 20 April
2006, 20 May 2006 and 20 June 2006, respectively. Consequently, the player
claimed the payment of the allegedly outstanding bonuses from the club, totalling
USD 200,000.
5.
In response to the player’s claim, the Respondent first of all held that the
handwritten changes of the due dates for the payments in the Additional
Agreement had been made unilaterally by the player or by his representative and
without the consent of the club. In this respect, the club presented the same
document signed by both parties but without the handwritten changes.
6.
Furthermore, the club held that the first clause of the Additional Agreement
stipulated the criteria for the payment of the bonuses to the player, namely the
conscientious execution of the labour charge, the professional sports skills and the
individual contribution to the achievements of Y. Furthermore, the club held that
the payment of bonuses for labour in accordance with art. 191 of the Labour Code
of B are considered to be a right and not a responsibility of the employer.
7.
In this respect, the Respondent held that the Claimant had not fulfilled the criteria
for the payment of bonuses, since from the five matches in which the player was
fielded by the Respondent, the club lost three matches and achieved one draw
and only one victory. Furthermore, the player did not score any goals during these
matches. In addition, the player did not conscientiously fulfil his obligations, since
he did not comply with the disciplinary sanction imposed on him by the club
because he refused to train with the team on 25 April 2006. The player had
explained in his defence that the club’s doctor had prohibited him from training
on the artificial turf for medical reasons and that, therefore, he had trained in the
gymnasium (written notice of the player dated 3 May 2006 enclosed). However,
according to the doctor of Y, the player was in no way impeded from playing on
the artificial pitch (statement of the club’s doctor dated 3 May 2006 enclosed). The
club also held that in the middle of May 2006, thus before the expiry of the labour
agreement, the player left B without authorisation of the club and therewith
breached his labour contract, the FIFA Regulations for the Status and Transfer of
Players as well as the Labour Code of B.
8.
Consequently, and in accordance with the labour legislation of B, the club had
decided not to pay the bonuses claimed by the player. The club affirmed that
during the time the player had executed his responsibilities properly, he had duly
been paid bonuses in the amount of USD 100,000.
Player X / Club Y
3
9.
Along with its statements, the club enclosed, inter alia, an order dated 3 May 2006
issued by the club due to the player’s failure to train with the club on the artificial
turf on 25 April 2005 which reads, inter alia, as follows:
“ordering:
1. apply to professional football player of Y X a disciplinary
sanction (in an admonition form) for inadequate execution of
labour liabilities, caused by his own fault.
2. Don’t apply to professional football player of Y X incentive as an
individual bonus in full amount till the disciplinary sanction
mentioned in this Order been cancelled”.
In this respect, the club held that the player had been asked to examine and sign
the said order, but had refused to do so. The club also enclosed a translation of
art. 191 of the Labour Code of B which inter alia states as follows:
“Incentive for labour: Employer incentives employees, who religiously observes his
labour obligations (expresses gratitude, gives bonus, valuable present, diploma,
present for rank of the best in profession)”.
10.
On account of the above explanations, the club requested that the player’s claim
be rejected.
11.
In response to the Respondent’s allegations, the player held that the relevant
agreements signed by both parties unequivocally stipulated the dates on which his
remuneration was to be paid.
12.
Furthermore, with regard to the allegation of the club that he had refused to
train with the team on 25 April 2006, the player affirmed that on that day, he had
appeared as usual to his workplace. However, since the training took place on an
artificial pitch, the doctor of the club recommended the player to only train in the
gymnasium since the player suffered from muscle ache. The player emphasised
that he had never refused to train with his club on that day.
13.
Furthermore, with regard to the allegations of the club according to which the
player had left the club in mid-May 2006, the player held that he never left the
club without its previous consent. When he left the club (he was training with the
second team of the club at that time), the Championship had been interrupted in
view of the World Cup and the club had granted vacation to its players.
Furthermore, the player alleged having asked the club (via its translator) for
permission prior to his departure.
Player X / Club Y
4
14.
The player emphasised that he had shown a professional attitude towards the club
at all times, due to which he insisted in his claim for the allegedly outstanding
remuneration.
15.
In its replica, the Respondent referred to its previous position and reiterated that
the bonus payments, which are to be considered as a pecuniary encouragement
for work achievements, were not an entitlement of the player, but were only due
if he fulfilled the corresponding criteria contractually agreed upon by the parties.
Furthermore, with regard to the player’s absence as of mid-May, the club held
that the championship matches in B had indeed been suspended due to the World
Cup. However, during this time all football teams of B, thus also Y, continued to
train and prepare for the further matches of the championship of B. The team had
trained from 25 May 2006 until 6 June 2006 in a training centre in B, and from 7
June 2006 until 21 June 2006 there had been a pre-season training camp in D. Y
emphasised that it had definitely not granted the player a one-and-a-half month
of vacation from mid-May until the expiry of his contract in the end of June 2006.
The club therefore concluded that it had rightfully deprived the player from the
bonus payments amounting to USD 200,000, and consequently requested the
Dispute Resolution Chamber once more to reject the player’s claim.
***
Player X / Club Y
5
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the matter at hand. In this respect, the Chamber referred to art. 18
paras. 2 and 3 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber. The present matter was
submitted to FIFA on 21 August 2006, thus after 1 July 2005. Therefore, the
Dispute Resolution Chamber concluded that the revised Rules Governing the
Procedures (edition 2005) on matters pending before the decision making bodies
of FIFA are applicable to the matter at hand.
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 para. 1
of the above-mentioned Rules states that the Dispute Resolution Chamber shall
examine its jurisdiction in the light of arts. 22 to 24 of the 2005 edition of the
Regulations for the Status and Transfer of Players. In accordance with art. 24 para.
1 in combination with art. 22 lit. b of the aforementioned Regulations, the
Dispute Resolution Chamber shall adjudicate on employment related disputes
between a club and a player that have an international dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving a player from A and a club from B
regarding a dispute between the parties in connection with an employment
contract.
4.
Subsequently, the Dispute Resolution Chamber analysed which edition of the
Regulations for the Status and Transfer of Players should be applicable to the
substance of the matter. In this respect, the Chamber referred, on the one hand,
to art. 26 paras. 1 and 2 of the 2005 edition of the Regulations for the Status and
Transfer of Players and, on the other hand, to the facts that the employment
contract and the Additional Agreement at the basis of the present dispute had
been concluded on 1 February 2006 and that the player’s complaint had been
lodged with FIFA on 21 August 2006. In view of the aforementioned, the Dispute
Resolution Chamber concluded that the 2005 edition of FIFA Regulations for the
Status and Transfer of Players are applicable to the substance of the case at hand.
5.
Entering into the substance of the matter, the Dispute Resolution Chamber
examined the documentation presented by the parties throughout the
proceedings and took note that the parties involved in the present dispute had
entered into an employment relationship valid from 1 February 2006 until 30 June
2006 and had, in this context, signed an Additional Agreement dated 1 February
2006 governing the award of personal bonuses to the player.
Player X / Club Y
6
6.
In this regard, the Dispute Resolution Chamber paid due consideration to the
statement of the Claimant, according to whom he had only received the first
instalment of the said bonuses in the amount of USD 100,000. Consequently, the
player had requested that the Respondent be ordered to settle the remaining
bonus payments in a total amount of USD 200,000.
7.
On the other hand, the members of the Chamber turned their attention to the
allegations which the Respondent had made in its defense. In particular, the
Respondent had asserted that the bonus payments stipulated in the Additional
Agreement were not an entitlement of the player but depended on his
performance, particularly the conscientious execution of the labour charge, the
professional sports skills and the individual contribution to the achievements of Y.
In this respect, the Chamber acknowledged that the club was of the opinion that
the player had not fulfilled the relevant criteria in order to be rewarded the
bonuses in accordance with the Additional Agreement.
8.
Consequently, the members of the Dispute Resolution Chamber proceeded to
deliberate on the questions whether or not the player was indeed entitled to
receive bonuses from the club in accordance with the Additional Agreement
concluded between the parties and, if so, at which amount. At this point, taking
into account the monthly salary of BBB 8,300, the Chamber deemed it important
to highlight that the pertinent payments in accordance with the Additional
Agreement constitute a more than considerable part of the player’s earnings at
the club.
9.
First of all, the Chamber deemed that it was necessary to establish, as a
preliminary question, which due dates for the respective payments had to be
taken into account. In this regard, the Dispute Resolution Chamber acknowledged
that, in the version of the Additional Agreement presented by the player, the due
dates of the four installments amounting to USD 50,000 had been amended in
handwriting to 20 March 2006, 20 April 2006, 20 May 2006 and 20 June 2006,
whereas in the version submitted by the club the respective due dates were
stipulated to be exactly one month later. In this regard, the members of the
Chamber considered that there was only one signature under the handwritten
amendments to the Additional Agreement, due to which it appeared that only
one of the parties, if any, had consented to such amendments. Furthermore, the
due dates which had been amended in handwriting would imply that the
payments were made to the player beforehand, i.e. before he rendered his
respective services to the club, which the Chamber considered to be a rather
unusual practice for the settlement of a player’s remuneration in general, and in
particular with regard to bonuses. The Chamber deemed that it could not be
assumed that the contractual parties had agreed upon such an unusual
arrangement unless it was unmistakable that both parties had clearly expressed
Player X / Club Y
7
their respective intention, which was certainly not the case in the matter at stake.
The foregoing considerations led the members of the Chamber to concluded that
it was the version of the Additional Agreement presented by the club, i.e. without
handwritten amendments, which had to be taken into account.
10.
Subsequently, turning its attention to the question whether or not the player was
entitled to receive any more bonus payments in accordance with the Additional
Agreement than the first installment which he had already been paid, the
members of the Chamber once more noted that the club refused the payment of
such bonuses since the player had allegedly not fulfilled the respective
performance-related requirements. In this regard, the Dispute Resolution Chamber
considered that the performance-related criteria to which the payments under the
Additional Agreement were allegedly linked appeared to be of a highly subjective
nature, entailing that, de facto, it is left to the complete and utter discretion of
the club whether or not it is willing to pay the relevant bonuses to the player. The
members also recalled that, in view of the relatively low monthly salary of the
player stipulated in his employment contract, the bonus payments as per the
Additional Agreement constituted a substantial part of the remuneration for his
services, the payment of which could not be left completely to the arbitrariness of
the club. Due to the above, the members of the Dispute Resolution Chamber were
of the unanimous opinion that the performance-related rule invoked by the
Respondent in order to refuse the bonus payments to the player was clearly
potestative and that, consequently, the respective argumentation of the club
could not be upheld by the Chamber.
11.
In continuation, the Chamber acknowledged that the Respondent had also
declared not having paid the relevant bonuses to the player since he had allegedly
refused to train with his team on 25 April 2006, due to which he had been
sanctioned by the club. On the other hand, the Dispute Resolution Chamber noted
that the player had argued that, on the same day, the club’s doctor had
recommended him not to play on the artificial pitch for medical reasons, which
was however contested by the Respondent. In this regard, the Chamber held that
it could not be clearly established due to which circumstances the player had not
participated in his team’s training on 25 April 2006; the members of the Chamber
were however of the opinion that, in any case, the omission of the player to train
with his team on one occasion could not serve as a justification to withhold a
substantial part of his remuneration.
12.
Consequently, the Dispute Resolution Chamber established that the Claimant was
indeed entitled to receive the instalments in accordance with the Additional
Agreement concluded between the parties. With regard to the amount of such
instalments due, the members of the Chamber acknowledged that, uncontestedly,
the player had left the club in mid-May, i.e. he had served three-and-a-half
Player X / Club Y
8
months of his five-month contract. In this respect, the Dispute Resolution Chamber
determined that the player was not entitled to receive bonus payments for the
entire contractual period, but only for the time during which he had been at the
disposal of the Respondent. In this context, the members of the Chamber were of
the opinion that the Respondent’s allegation that the player had left the club in
mid-May without its permission did not justify the non-payment of the bonuses
earned by the player until the day of his departure.
13.
On account of the above, the Chamber deemed that the player was to receive a
pro-rata share of the total amount of contractual payments under the Additional
Agreement, i.e. USD 300,000. As the player had remained with the club during
three-and-a-half months of the five-month contract period, and since he had
admittedly received the first installment as per the Additional Agreement
amounting to USD 100,000, the members of the Chamber concluded their
deliberations on the present case by deciding that the Respondent had to pay to
the Claimant outstanding bonuses in the total amount of USD 110,000 and that all
further claims of the player had to be rejected.
***
Player X / Club Y
9
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, the X, is partially accepted.
2.
The Respondent, Y, has to pay the amount of USD 110,000 to the Claimant within
30 days of the date of notification of the present decision.
3.
In the event that the above-mentioned amount is not paid within the indicated
deadline, interest at a rate of 5% p.a. will apply and the present matter shall be
submitted to FIFA’s Disciplinary Committee for its consideration and decision.
4.
Any further claim of the Claimant is rejected.
5.
The Claimant, the player X, is instructed to inform the Respondent, Y, directly and
immediately of the account number to which the remittance is to be made and to
notify the Dispute Resolution Chamber of every payment received.
6.
According to art. 61 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:
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
On behalf of the
Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player X / Club Y
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