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), President
Mario Gallavotti (Italy), Member
Zola Majavu (South Africa), Member
Michele Colucci (Italy), Member
Rinaldo Martorelli (Brazil), Member
on the claim presented by the
Player A,
as Claimant/Counter-Respondent,
against the
Club B,
as Respondent/Counter-Claimant,
regarding a contractual dispute arisen between the above-mentioned parties.
I.
Facts of the case
1.
On 25 February 2003, the player A (hereinafter; the player) and an unnamed
person on behalf of the club B (hereinafter; club B) signed an employment
contract valid from the date of signature until 30 June 2005 (hereinafter; the
employment contract). Such contract bears the club’s stamp of club B.
2.
On the same date, the parties also signed appendix I to the employment contract
(hereinafter; appendix I) stipulating the following contractual benefits of the
player:
- In 2003: USD 150,000 (USD 75,000 at the moment of the contract’s
signature and USD 75,000 in 12 monthly instalments – USD 6,250 per
month),
- In 2004: USD 150,000 (USD 75,000 until 31 January 2004 and USD 75,000
in 12 monthly instalments – USD 6,250 per month),
- Until 30 June 2005: USD 75,000 (USD 37,500 until 31 January 2005 and
USD 37,500 in 6 monthly instalments – USD 6,250 per month),
- Free accommodation and two return flight tickets to the players home
country per year,
- Bonuses in accordance with the club’s regulations.
3.
At the time of the signature of the employment contract and appendix I, the
same parties also signed appendix II to the employment contract (hereinafter;
appendix II), by means of which the player was loaned to the club C (hereinafter;
club C) from 1 March to 30 June 2003.
4.
According to the player, once the mentioned loan period had ended, an
additional appendix (hereinafter; appendix III) was allegedly signed between the
parties, by means of which the loan was extended to 31 December 2003. FIFA
was not provided with a copy of appendix III.
5.
Furthermore, the player provided FIFA with an employment contract
(hereinafter; the second employment contract) dated 1 January 2004 between
him and club B, valid until 30 June 2005, which, according to him, was a forgery,
as he never signed that document. The second employment contract stipulates a
monthly salary of approximately USD 1,000.
6.
On 14 February 2004, the player played in an official match with club B.
7.
On 9 March 2004, the player unilaterally terminated the employment contract
with club B in writing.
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Player A / Club B
8.
On 21 June 2004, the Arbitration Commission of the Football Association of club
B rejected a claim of the player in the same matter as the one currently at stake
(copy of the respective decision in file).
9.
In August 2004, FIFA authorised the Football Association of club D to
provisionally register the player for club D in order to avoid jeopardizing the
player’s future career. With the said club, the player signed an employment
contract valid from 22 July 2004 until 30 June 2005, stipulating a monthly salary
of EUR 1,900.
10.
On 8 July 2004, the player submitted a claim to FIFA against club B, claiming for
all the outstanding payments and for all the salaries and signing-on fees that he
was contractually entitled to receive until the expiry of his employment contract,
in the total net amount of USD 250,000, as well as for interests, and for the
reimbursement of his legal costs in the amount of EUR 4,000.
11.
Thereby, the player first of all emphasised that he had tried without success to
submit the present claim to the Arbitration Commission of the Football
Association of club B, but that no decision was ever taken by the latter in this
matter.
12.
The player claimed that, in the beginning of 2004, when he had returned from
the loan to club C, he had participated to all activities of club B, until 9 March
2004, he had only received from club B the amount of USD 75,000 as signing-on
fee at the moment of the employment contract’s signature (25 February 2003)
and eight salaries up to November 2003 of USD 6,250 each.
13.
In this respect, the player provided bank receipts, according to which he was paid
EUR 75,000 on 12 February 2003 from a company X and 8 times from 12 June to
18 December 2003 an amount between USD 5,400 and 7,500 from a company Y,
having its seat in the city of club B. These payments were made without any
reference.
14.
Due to club B’s non-compliance with its contractual obligations towards him, he
unilaterally terminated the employment contract on 9 March 2004.
15.
On 19 August 2004, club B replied to the player’s claim and maintained first of
all that the player had submitted his present claim to the Arbitration Commission
of the Football Association of club B, which had entirely rejected his claim. club
B, however, did not submit any documentary evidence in this respect.
16.
Furthermore, club B argued that the player was never registered with club B at
the Football Association of club B in 2003.
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Player A / Club B
17.
Moreover, according to club B, the employment contract dated 25 February 2003
was not concluded by it, “but by the club which is marked as club B in the
introduction of the contract”.
18.
Club B also affirms that the employment contract is void, based on the fact that
it makes a reference to the legislation of the country of club C and that it was
signed by only one person, allegedly on behalf of the club, instead of two, as
stipulated by the national law. In addition to the signatures, the contract should
also mention the names, surnames and functions of the signatories.
19.
Furthermore, club B defends that it is not aware of who signed the employment
contract, allegedly on behalf of the club, and asserts that the only thing linking
the club to the contract is the club’s stamp. However, club B underlines that a
stamp can easily be created.
20.
Club B also invokes that the payments received by the player were not made
from club B’s bank account, but from an account with a different number.
21.
Club B however maintained that the player was bound to it by the second
employment contract dated 1 January 2004, which was valid until 30 June 2005.
According to club B, the player had no evidence that this contract was a forgery.
22.
In this respect, club B also provided a copy of an ITC issued on 30 January 2004 by
the Football Association of club C to the Football Associatio of club B, according
to which the player was transferred from club C to club B. Based on this, club B
maintained that the player was not connected to club B in the year 2003 and
therefore also could not have been loaned by the latter to a third club.
23.
Club B finally provided a copy of a letter to the player dated 10 March 2004, by
means of which the player was informed that his salaries for January and
February 2004 were ready to be collected by him in the offices of club B.
24.
In conclusion, club B requested that the second employment contract is respected
by the player until 30 June 2005.
25.
On 24 September 2004, the player submitted his position towards club B’s
answer, and in this respect, basically reiterated his former arguments.
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Player A / Club B
26.
With regard to the payments he had received under the appendix I, he indicated
that the signing-on fee of EUR 75,000 was paid to him by a company Z, which
has its in a third country, and whose majority owner is a member of the
presidency board of club B. The monthly salaries of USD 6,250 in their turn were
paid by company Y, which has its seat in the city of club B, and which is partially
owned by a person who in his turn is the president of the board of directors of
club B. Besides that, the player also mentioned that this person was also a partial
owner of club C.
27.
On 29 November 2004, club B submitted its final position on the player’s claim,
and thereby basically reiterated its former arguments.
28.
On 4 March 2005, club B amended its final position with a counterclaim against
the player for breach of contract without just cause.
29.
In this respect, club B maintained that the player had breached the contract
concluded on 1 January 2004. Therefore, it claimed for EUR 250,000 as
compensation, plus EUR 50,000 for the harm of club B’s reputation resulting
from publications in the media with relation to the matter at stake.
30.
On 22 June 2005, the club again amended its final position and thereby doubled
the amount of its counterclaim to EUR 500,000 for unjustified breach of contract
and EUR 100,000 for the harm of club B’s reputation resulting from reports in the
media.
31.
On 27 June 2006, the player submitted his answer to the counterclaim, and
thereby requested that the counterclaim be rejected and that his claim be
accepted on the basis of his formerly submitted arguments.
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 on 8 July 2004,
as a consequence the Chamber concluded that the previous Procedural Rules
(edition 2001) on matters pending before the decision making bodies of FIFA are
applicable on the matter at hand.
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Player A / Club B
2.
With regard to the competence of the Chamber, art. 42 par. 1 lit. (b) (i) of the
FIFA Regulations for the Status and Transfer of Players (edition 2001) establishes
that the triggering elements of the employment-related dispute (i.e. whether a
contract was breached, with or without just cause, or sporting just cause), will be
decided by the Dispute Resolution Chamber (DRC).
3.
If an employment contract is breached by a party, the Dispute Resolution
Chamber is also responsible to verify whether a party is accountable for
outstanding payments and/or compensation.
4.
As a consequence, in principle, the Dispute Resolution Chamber is the competent
body to decide on the present litigation involving a club and a player with
different nationalities regarding a dispute in connection with an employment
contract.
5.
After having established the above, the Chamber turned to the player’s
statement that he had tried without success to submit the present claim to the
Arbitration Commission of the Football Association of club B, but that no
decision was ever taken by the latter in this matter. In this respect, the Chamber
also noted that according to the documentation at its disposal, the Arbitration
Commission of the Football Association of club B had rejected on 21 June 2004 a
claim of the player in the same matter as the one currently at stake. Finally, the
Chamber took note of club B’s argument that the player had submitted his
present claim to the arbitration committee of the Football Association of club B,
which had entirely rejected his claim, and that the DRC therefore could not enter
into the substance of this matter.
6.
In view of the above, the Chamber outlined that the first question to be
answered in the present case is whether a decision has already been taken by the
Arbitration Commission of the Football Association of club B in the dispute
concerning the same parties, the same object and the same cause as in the
dispute presently submitted to the DRC, and whether such decision is binding for
the parties and for any other court or juridical deciding body, e.g. a deciding
body of an association (res iudicata).
7.
With regard to that question, the DRC first of all noted that the player has
admitted that he had submitted the present claim before the Arbitration
Commission of the Football Association of club B before having submitted it to
the DRC. Thereof, the DRC concluded that it is undisputed that the dispute
currently submitted to the DRC concerns the same parties, the same object and
the same cause as the dispute that has been submitted to a deciding body of the
Football Association of club B at an earlier point in time.
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Player A / Club B
8.
However, the positions of the player and club B are diametrically opposed as far
as the outcome of the procedure before the Arbitration Commission of the
Football Association of club B is concerned. Therefore, the Chamber made
reference to the official information received from the Football Association of
club B, and in this respect, stated that the said information has clearly to be
understood in the sense that the claim of the player against club B in the present
dispute has been rejected by the Arbitration Commission of the Football
Association of club B.
9.
Finally, the DRC had to analyse whether the above-mentioned decision of the
Arbitration Commission of the Football Association of club B is to be considered
as final and binding for the parties concerned and for any other court or juridical
deciding body. In this respect, the DRC emphasised that no reason was invoked
why the mentioned decision of the Arbitration Commission of the Football
Association of club B should not have become final and binding. Moreover, the
DRC underlined that since the player has himself submitted the present dispute
to the Arbitration Commission of the Football Association of club B, he has
accepted the jurisdiction of the said deciding body and has, in particular,
forfeited the right to invoke a possible non-compliance of that deciding body
with the prerequisite of a composition of such deciding body in equal
representation of clubs and players.
10.
In conclusion, the DRC decided that the present claim of the player has been
submitted by the player to the Arbitration Commission of the Football
Association of club B before having been submitted to the DRC, and has been
rejected by the said deciding body. The said decision is binding for the parties to
the said dispute as well as for the Dispute Resolution Chamber. Therefore, the
player’s present claim has to be rejected. Furthermore, the present contractual
dispute having conclusively been dealt with by the Arbitration Commission of
the Football Association of club B, also with regard to the contract allegedly
concluded between the parties on 1 January 2004, the DRC determined that it
could not decide upon the counterclaim lodged by club B either. Consequently,
no decision is taken by the DRC in the substance of this matter.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the player A is rejected.
2.
The counterclaim of the club B is rejected.
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Player A / Club B
3.
According to art. 61 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 21 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
[email protected]
www.tas-cas.org
For the
Dispute Resolution Chamber:
Markus Kattner
Deputy Secretary General
Encl.
CAS directives
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Player A / Club B