Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 2 November 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Gerardo Movilla (Spain), member
John Didulica (Australia), member
Essa M. Saleh Al-Housani (United Arab Emirates), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player
Player A
represented by Dr. XY, attorney-at-law,
as Claimant,
against the club
Club B
as Respondent,
regarding a dispute about the breach of an employment contract.
.
I.
Facts of the case
1.
On 22 July 2006, the player A, and the Club B signed an employment contract for
the period 1 August 2006 to 30 June 2009. The parties agreed to a salary of USD
150,000 for the 2006-2007 season (USD 50,000 payable up to 20 August 2006 and
thereafter 10 monthly instalments of USD 5,000 each and 34 instalments of USD
1,470 after every fourth match). The parties agreed to a salary of USD 200,000 for
the 2007-2008 season (USD 80,000 payable up to 20 August 2007 and thereafter 10
monthly instalments of USD 6,000 each and 34 instalments of USD 1,764 after
every fourth match). The parties agreed to a salary of USD 250,000 for the 20082009 season (USD 90,000 payable up to 20 August 2008 and thereafter 10 monthly
instalments of USD 9,000 each and 34 instalments of USD 2,058 after every fourth
match).
2.
On 8 September 2006 the player informed FIFA that he had gone to the country of
Club B after signing the contract and had regularly taken part in the training
sessions. He had appeared on an official team photograph and had been
introduced on the club's website as a new player. As a result of inconsistencies
within the club, the request for registration had not been made and he had never
been registered with the Club B. The player pointed out that the clause in the
employment contract stating that he was required to obtain the release was of
course unacceptable and did not comply with the applicable FIFA provisions. The
first instalment due on 20 August 2006 in respect of the 2006-2007 season,
amounting to USD 50,000 according to the employment contract, was not paid by
the scheduled deadline. Consequently, his father had contacted Club B and
requested it to fulfil the valid and binding contract and pay the instalment due.
There was no reaction to this, other than he was vaguely told verbally that he was
no longer wanted and that the club did not consider the employment contract
effective as it had not been concluded in the country of Club B. The player then
demanded payment of the USD 50,000 again, setting another deadline for it to be
paid. On 5 September 2006, the day after the second deadline, he was verbally
informed he could fly home. Significantly, he was also given a return plane ticket.
He therefore flew back to his home country on 5 September 2006. As the first
instalment of USD 50,000 was the equivalent of one third of the contractual
amount for the season in question, it was obvious that the club had breached the
contract. Furthermore, the first monthly instalment was due by 1 September 2006
at the latest and the Club B had played its fourth match of the season on 26
August 2006. The player therefore claimed the instalment of USD 50,000, the first
month’s instalment of USD 5,000 and the amount of USD 5,880, after the first part
of the 34 instalments to this amount was to be paid after the fourth match in the
season (USD 1,470 x 4) and demanded that Club B should be make to refund him
for any future damages for not fulfilling the employment contract, or alternatively
Player A / Club B
2
that Club B be ordered to pay him appropriate compensation on grounds of
breach of contract.
3.
On 8 February 2007 and on 9 May 2007, FIFA asked Club B to submit its comments
2007 but to no avail.
4.
In a letter dated 18 July 2007, the player claimed payment of the total amount of
USD 150,000 (the outstanding amount plus compensation for breach of contract),
5% interest on USD 50,000 since 21 August 2006 and on USD 100,000 since 1 July
2007. He states that he has been playing for the Club C since 31 January 2007 for
EUR 250 a month and that the interim earnings of EUR 1,250 (for February to June
2007) should be deducted from the amount of USD 150,000 for the 2006-2007
season.
5.
The Club B was informed of this amendment to the claim on 28 August 2007.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the 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 and its Dispute
Resolution Chamber on 8 September 2006, 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 on 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 current version of the
Regulations for the Status and Transfer of Players (edition 2005). In accordance
with art. 24 par. 1 in connection with art. 22 (b) of the aforementioned
Regulations, the Dispute Resolution Chamber shall adjudicate on employmentrelated 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 A and Club B regarding a
contractual dispute in connection with an employment contract.
Player A / Club B
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4.
Subsequently, the members of the Chamber analysed 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 22 July 2006 and that the claim was
lodged at FIFA on 8 September 2006. In view of the aforementioned, the Chamber
concluded that the current FIFA Regulations for the Status and Transfer of Players
(edition 2005, hereinafter: the Regulations) are applicable on the case at hand as
to the substance.
5.
Entering into the substance of the matter, the members of the Chamber started by
acknowledging the documentation contained in the file, and in view of the
circumstances of the case, focused on the question whether an unjustified breach
of the employment contract concluded between the player and Club B occurred
and which party is responsible for such breach of contract and to verify and decide
if sanctions for breach of contract have to be applied.
6.
In this respect, the Chamber first of all emphasised that even if the player had
never been registered for Club B the allegations of the player seem credible. Based
on the facts hat the player provided FIFA with a copy of the employment contract,
that the contract mentioned a yearly salary in the amount of USD 150,000 for the
first year, that the father of the player and his legal representative claimed firstly
the fulfilment of the employment contract, that the player was published as a new
player of the first team on the homepage of the club and that he received a
return plane ticket from the club, the Chamber came to the conclusion that
undoubtedly, a contractual relationship existed effectively between the player and
the club.
7.
Therefore, the members of the Chamber acknowledged that the player and the
club signed a valid employment contract for three years valid until 30 June 2009.
According to the relevant employment contract, the parties agreed a salary of USD
150,000 for the 2006-2007 season, USD 200,000 for the 2007-2008 season and USD
250,000 for the 2008-2009 season. Furthermore, the Chamber acknowledged that
the player claimed payment of the total amount of USD 150,000, 5% interest on
USD 50,000 since 21 August 2006 and on USD 100,000 since 1 July 2007 and that
he stated that he has been playing for another club with a monthly salary of EUR
250 per month. The Chamber observed that the Club B never took position in the
dispute, despite having been asked to do so by FIFA on several occasions.
8.
Furthermore, the Chamber pointed out that no reply to the claim having been
received from the Club B, the case shall be decided only on the basis of the facts
Player A / Club B
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and evidence provided by the player A. In other words, a decision shall be taken
upon the basis of the documents on file (cf. art. 12 par. 3 of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber).
9.
In this respect, the Chamber underlined that by failing to present a response to
the player’s claim, Club B renounced its right to defence and thus, in principle,
accepts the allegations of the player.
10.
Consequently, having thus analysed the documents on file, the Chamber came to
the conclusion that the breach of contract by the club without just cause is not
contested and that the club is liable to pay compensation for breach of contract.
11.
Concerning the allegedly outstanding amounts and the amount of compensation
for breach of contract, the Chamber had first of all to examine if the amount
payable up to 20 August 2006 of USD 50,000 can be considered as a sign-on fee
and if so, if this sign-on fee is only due pro rata temporis in the case that the
employment relationship is terminated prematurely.
12.
In this respect, the Chamber carefully studied the contents of the employment
contract and noted that the parties mentioned in every year of the contractual
relationship a single payment (USD 50,000 for the first year, USD 80,000 for the
second year, USD 90,000 for the third year) as first rate of the salary. Furthermore,
the Chamber took note that the contract does not mention the term “sign-on
fee”. Therefore and in application of the terms of the contract, it concluded that
the first payment of USD 50,000 has to be considered as part of the salary which
had to be paid under respect of certain deadlines. Based on the above, the
Chamber concluded that this amount still remains outstanding.
13.
Furthermore, the Chamber took note that uncontestedly, the first salary in the
amount of USD 5,000 and the amount of USD 5,880 after the fourth match in the
season remained outstanding. Therefore, the Chamber emphasised that by failing
to pay these amounts and by not registering the player with the Football
Association of Club B, the club breached the employment contract without just
cause. Therefore, the Chamber concluded that the Club B has to pay the
outstanding amounts in the total amount of USD 60,880 and is liable to pay
compensation for breach of contract.
14.
The Chamber finally analysed the stances of the player, in order to consider if
there were any exceptional circumstances mitigating or aggravating the amount
of compensation. Therefore, the Chamber stated that the attitude of the club
could be judged as particularly reproachable. In fact the club never registered the
player, did not respect its financial obligations and never responded to the claims
Player A / Club B
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of the player. The damage caused by the club is not only of financial nature, but
also a sporting one, since the player could not play for a certain time. This could
have an aggravating effect on the amount of the financial compensation to be
paid by the club to the player A. Finally, the Chamber stated that as mitigating
criteria, the amount that the player effectively earned during the first year of the
breached employment relationship, shall be taken into consideration.
15.
In view of all of the above, the members of the Chamber came unanimously to the
conclusion that the club should be liable to pay compensation for breach of
contract to the player in the amount of USD 87,270.
16.
With regard to the default interest claimed by the player, the Chamber
acknowledged that they are not stipulated in the employment contract. However,
it applied its well-established jurisprudence and decided that an interest rate of
5% per year on the outstanding first rate in the amount of USD 50,000 shall apply,
starting on 21 August 2006.
17.
Taking into account the foregoing and having analysed the financial aspects of
the player’s claims, the Dispute Resolution Chamber concluded its deliberations by
announcing that the player’s claims were partially accepted. Therefore, the
Chamber decided that Club B has to pay the total amount of USD 148,150
(USD 60,880 as outstanding salaries, USD 87,270 as compensation for breach of
contract) to the player Player A and 5% interest per year on the amount of
USD 50,000 starting on 21 August 2006 until the effective date of payment.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the club the player A is partially accepted.
2.
The club Club B must pay the amount of USD 148,150 to the player A within the
next 30 days as from the date of notification of this decision.
3.
If the aforementioned amount is not paid within the stated deadline, an interest
rate of 5% per year shall apply, as from expiry of the stated deadline.
4.
The Club B must pay 5% interest per year on the amount of USD 50,000 starting
on 21 August 2006 until the effective date of payment within the next 30 days
as from the date of notification of this decision.
Player A / Club B
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5.
In the event that Club B does not comply with the present decision, the matter
shall be submitted to FIFA’s Disciplinary Committee, so that the necessary
disciplinary sanctions may be imposed.
6.
Any further claim lodged by the player A is rejected.
7.
The player A is instructed to inform the Club B immediately and directly of the
account number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
8.
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:
Court of Arbitration for Sport
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:
Jérôme Valcke
General Secretary
Encl.
CAS directives
Player A / Club B
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