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 Malvern Percival Majavu (South Africa), member
Michele Colucci (Italy), member
Rinaldo Martorelli (Brazil), member
on the claim presented by the player
A, X,
as “Claimant”
against the club
B, Y,
as “Respondent”
regarding an employment-related dispute.
I.
Facts of the case
1.
On 17 February 2005, the player A from the country X, the Claimant, and the club
C from the country Y signed an employment contract valid until 17 February
2008.
2.
According to point IV.2. of the contract, the said club committed itself to pay the
Claimant a monthly salary of 1,000, payable on the 15th of every month.
3.
Additionally, the aforementioned parties signed an annex 1, by means of which
they stipulated a monthly salary in favour of the Claimant of net EUR 700 during
the first contractual year, of EUR 1,200 during the second year and of EUR 2,200
during the third year.
4.
On 7 March 2007, the Claimant contacted FIFA explaining that in the first
contractual year everything went fine with the club C. He was captain of the
team and nominated as best goalkeeper of the Y league. Then, in the beginning
of the second football season, the aforementioned club stopped paying him the
salary. In particular, the Claimant explained that during the passed 4 months
from September until December 2006 the club paid him instead of EUR 6,000 (4 x
EUR 1,500) only EUR 1,700 and that since January 2007 he does not receive any
money.
5.
The Claimant explained that he was entitled to receive in the first contractual
year the amount of EUR 1,000, in the second year EUR 1,500 and in the third year
EUR 2,500.
6.
Therefore, the Claimant claims:
- EUR 35,800 as salaries from 15 September 2006 until 17 February 2008 and
- interest as from September 2006.
7.
On 26 October 2006, 20 February 2007 and 5 March 2007, the Claimant contacted
the Disciplinary Committee of the Y federation (Y-F) asking for its assistance in
obtaining the outstanding salaries indicating that otherwise he has to contact
FIFA.
8.
On 20 February 2007, the Claimant put in default the club B, the Respondent, and
on 5 March 2007 the Claimant put in default the club C.
9.
On 20 March 2007, the Y public enterprise D, owner of C responded that the
Claimant has/had a contract with the public enterprise C, which is a separate
enterprise. Furthermore, it stated that the Claimant was playing for B in the 2005
and 2006 seasons. Prior to 1 May 2006, its club did not pay the Claimant any
salary. On 1 May 2007 (sic), its club and the public enterprise C made an
agreement, by means of which its club was obliged to pay the Claimant a
_________________________________________________________________________________________________________________
Player A, country X / Club B, country Y
2
monthly salary of 1,000. On 1 December 2006, it informed C that it will terminate
the loan contract by 1 January 2007, since the Claimant was complaining that he
does not receive his other part of salary, which B has never paid him. B was not
interested in taking over obligations of the public enterprise C, since it did not
like the Claimant’s performance.
10.
In reply thereto, the player contested the allegations of D. He affirmed that the
owner of both companies C and D is Mr E.
11.
The Claimant argued that he was informed by Mr E that C is part of B. The
Claimant further explained that Mr E had told him that he created C for a
purpose that this club on a later stage would not undertake any responsibility
and could avoid paying taxes and due remuneration in disputable situations.
Consequently, the said club filed at the Y-F only the contract without the
annexes. According to the Claimant, he received the salary stipulated in the
annex always in cash.
12.
With regard to the above-mentioned loan agreement made between D and C,
the Claimant explained that since these clubs or enterprises are one entity, it is
not possible for a player to be loaned to a club for which he is currently playing
for. Furthermore, the date of this alleged transfer was outside the registration
period. The Claimant further stated that he was not informed on such change
and has not signed any documents concerning a loan. Finally, the Claimant
mentioned that he did not see any loan agreement, which should be filed with
the Y-F.
13.
The Claimant added that the club blocks his transfer to another club demanding
high transfer sums. In March 2007, the X federation (X-F) asked the Y-F to issue
the International Transfer Certificate (ITC). According to the Claimant, the Y-F did
not issue the ITC because he has a valid contract with B. To this regard, the
Claimant presented a copy of the relevant refusal of the Y-F.
14.
On 23 April and 3 May 2007, FIFA asked the Y-F to present the following
information/documentation:
-
-
With which of its affiliated club(s) was the Claimant registered and copies of
the relevant employment contract(s).
In case that the Claimant was loaned from one of its affiliated club to another
of its affiliated club, the name of these clubs and a copy of the relevant loan
agreement.
Explanation on the exact current status of the three following clubs: C, D and
B:
- Are they three independent legal entities or must some of them be
considered as the same legal entity;
- is one the legal successor of another;
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Player A, country X / Club B, country Y
3
- in case that one of the three clubs does not exist any longer, is there any
legal successor, and in the affirmative, which club is this;
- do they participate regularly and actively at its national and/or international
competitions.
15.
In reply thereto, the Y-F sent FIFA some explanation of the public enterprise of D.
In particular, the aforementioned entity stated that the player was registered as a
player of the public enterprise C, with which he has a contract. Furthermore C
and D are separate public enterprises. D as a club owns the team called B, i.e. D
and B should be considered as the same legal entity. Finally, the public enterprise
D by name of B takes part in the Y highest division championship.
16.
On 11 May 2007, FIFA asked the Y-F once again for the above-mentioned
information/documentation plus an explanation on the following discrepancy: On
the one hand, according to the club D, the Claimant is contractually bound to C,
whereas, on the other hand, the Claimant informed us that upon request of the
X-F to issue the relevant ITC for him, the Y-F answered, on 16 March 2007, that
the X club should contact B, since the player has a valid contract with the said
club.
17.
The Y-F responded thereto that since the Claimant wished to terminate his
contract with C he contacted its Disciplinary Committee. The Board of the said
Committee inspected the Claimant’s application, however, the Claimant left Y
and they could not reach him any longer.
18.
Furthermore, the Y-F stated that C belongs to the public enterprise D and took
part in the Y Championship Top division until the end of the 2006 season. From
the start of the 2007 season, B took part in the Y Championship Top division. The
team C does not play in any competition organized by the Y-F as from the start of
the 2007 season, therefore in response to the ITC request they indicated the team
B as one of the team of the public enterprise D.
19.
On 22 May 2007, FIFA asked the Y-F if its Disciplinary Committee or any other
competent body opened formal proceedings in the present matter, and in the
affirmative, to inform it on the parties involved and on the current status of
proceedings, by 25 May 2007. No reply was received from the Y-F.
20.
On 4 June 2007, FIFA asked the Y-F to inform it on the relationship existing
between the club C and B. In particular, to inform it if B is the legal successor of
the club C, by 11 June 2007. Without success.
21.
On 5 June 2007, FIFA recommended the parties to consider the relationship
terminated. No reaction of the Y-F followed hereto.
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Player A, country X / Club B, country Y
4
22.
On 26 June 2007, the Y-F issued the ITC for the Claimant in favour of the X-F. As
former club of the Claimant is indicated B.
23.
The Claimant insisted on his claim. He further explained that he left Y in January
2007, but could only sign a new employment contract as of 1 August 2007, which
is valid until 30 June 2008 and stipulates a monthly salary of 936.
24.
On 18 October 2007, FIFA asked the Y-F to inform it if C is an affiliated member
of its federation, by 25 October 2007. Again, no answer was received from the YF.
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 stake. In this respect, it referred to art. 18 par. 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 7
March 2007, as a consequence the Chamber concluded that the revised Rules
Governing 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 Chamber, art. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the Regulations for the Status and
Transfer of Players (edition 2005). In accordance with art. 24 par. 1 in
combination with art. 22 (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 X player and a Y club regarding an
employment-related dispute.
4.
Subsequently, the members of the Chamber analyzed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred, on the one hand,
to art. 26 par. 1 and 2 of the Regulations for the Status and Transfer of Players
(edition 2005) and, on the other hand, to the fact that the relevant contract at
the basis of the present dispute was signed on 17 February 2005 and the claim
was lodged at FIFA on 7 March 2007. In view of the aforementioned, the
Chamber concluded that the FIFA Regulations for the Status and Transfer of
Players (edition 2005, hereafter: the Regulations) are applicable to the case at
hand as to the substance.
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Player A, country X / Club B, country Y
5
5.
In continuation, the members of the Chamber acknowledged the abovementioned facts as well as all the further documentation contained in the file.
6.
In particular, the members of the Chamber took due note that, on the one hand,
the Claimant demands from the Respondent outstanding salaries and the
remaining value of the employment contract and annex 1 concluded with the
club C in the total amount of EUR 35,800 plus interest due to the fact that the
Respondent allegedly did not pay him the entire salaries of September until
December 2006 and any remuneration at all since January 2007. Furthermore, the
Chamber acknowledged that the Claimant motivated his alleged entitlement
with the argument that C is part of B, i.e. the two clubs are one entity and that
consequently no loan could occur nor any loan agreement had been signed.
Equally, the Chamber took note that the Claimant is explaining that even the Y-F
confirmed during the ITC procedure that he had a valid contract with B. The
Chamber finally acknowledged that consequently to the aforementioned, the
Claimant left Y in January 2007 and signed a new employment contract as of 1
August 2007.
7.
On the other hand, the Chamber noticed that D, the owner of the Respondent is,
in particular, convinced that the Claimant was registered with C, with which he
had an employment contract only. Furthermore, the Chamber acknowledged that
D explained that the Claimant played for its club B during the 2005 and 2006
seasons and that it agreed to loan the Claimant from C as of 1 May 2006 paying
him a salary of 1,000, as well as that it terminated the said loan agreement by 1
January 2007, since it did not like the Claimant’s performance.
8.
Furthermore, the Chamber took note that the Respondent did not present any
position to the claim of the Claimant, although having been invited to do so.
9.
Finally, the members of the Chamber noticed that the Y-F informed FIFA that C
belongs to D and took part in the Y Championship Top division until the end of
the 2006 season and that from the start of the 2007 season, B took part in the
said Championship. Furthermore, the Chamber acknowledged that the Y-F
confirmed that C does not play in any competition organized by the Y-F as from
the start of the 2007 season and that it therefore indicated in response to the ITC
request of the X-F that the Claimant has a valid contract with B, since the latter is
part of D.
10.
On account of the above, the Chamber concluded that in the present matter not
only the positions of the parties are disputed, but also the facts of the present
matter are contradictory and unclear. In this respect, the Chamber reproached
the behaviour of the Y-F by mostly not answering the numerous and precise
questions of FIFA although having been invited to do so on several occasions.
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Player A, country X / Club B, country Y
6
11.
In view of all of the above, the members of the Dispute Resolution Chamber
came to the conclusion that the information and documentation submitted is not
sufficient in order to take a decision in the present matter, at the present
moment.
12.
As a result, the Chamber decided that in order to clarify the circumstances of the
present dispute and hence to be in a position to rule on the present case the Y-F
has to present the following information/documentation:
- For which club and on which basis the player A was registered at the Y-F during
the years 2005, 2006 and 2007 (indicating the exact dates and providing copies
of all the relevant documents such as employment contracts, transfer or loan
agreements etc.)?
- The affiliation history of the clubs B and C, particularly, during the years 2005,
2006 and 2007?
- In which division of the Y-F did B and C play respectively since the year 2005?
- Is D a club affiliated to the Y-F or has it ever been affiliated?
- In case D is not an affiliate of the Y-F: Does the public enterprise D have a club
with which it participated/participates in the national championship, in
particular, during the years from 2005 to 2007?
- Why does C not participate in any competition organized by the Y-F as of the
2007 sporting season?
- Is C still an affiliated member of the Y-F and does it participate in any
competition organized by the Y-F as of the 2008 sporting season?
- Copy of the employment contract signed between the player A and B, since the
Y-F answered on 16 March 2007 to the request of the X-F to issue the relevant
international transfer certificate that having the player a valid contract with B,
the X club should contact the said club.
- What is the precise relation between B and C?
- Was there ever a transfer of the player from B to C and if so, on which basis?
III.
Decision of the Dispute Resolution Chamber
1.
The
Y-F
is
instructed
information/documentation:
1.1.
For which club and on which basis the player A was registered at the Y-F during
the years 2005, 2006 and 2007 (indicating the exact dates and providing copies
of all the relevant documents such as employment contracts, transfer or loan
agreements etc.)?
1.2.
The affiliation history of the clubs B and C, particularly, during the years 2005,
2006 and 2007?
1.3.
In which division of the Y-F did B and C play respectively since the year 2005?
to
provide
FIFA
with
the
following
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Player A, country X / Club B, country Y
7
1.4.
Is D a club affiliated to the Y-F or has it ever been affiliated?
1.5.
In case D is not an affiliate of the Y-F: Does the public enterprise D have a club
with which it participated/participates in the national championship, in
particular, during the years from 2005 to 2007?
1.6.
Why does C not participate in any competition organized by the Y-F as of the
2007 sporting season?
1.7.
Is C still an affiliated member of the Y-F and does it participate in any
competition organized by the Y-F as of the 2008 sporting season?
1.8.
Copy of the employment contract signed between the player A and B, since the
Y-F answered on 16 March 2007 to the request of the X-F to issue the relevant
international transfer certificate that having the player a valid contract with B,
the X club should contact the said club.
1.9.
What is the precise relation between B and C?
1.10.
Was there ever a transfer of the player from B to C and if so, on which basis?
2.
The
Y-F
must
present
the
above-mentioned
requested
information/documentation within 15 days as from the date of notification of
the present decision.
3.
Should the relevant information/documentation not be sent to FIFA by the Y-F
within the stated time limit, the matter will immediately be submitted to the FIFA
Disciplinary Committee, so that the necessary disciplinary measures may be
imposed.
For the Dispute Resolution Chamber:
__________________________________
Jérôme Valcke
General Secretary
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Player A, country X / Club B, country Y
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