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
P, C,
as Claimant
against the club
C, Y
as Respondent
regarding a contractual dispute arisen between the player and the club.
I.
Facts of the case
1.
The futsal player P (hereinafter: the Claimant) and the Y club, C (hereinafter: the
Respondent) concluded an employment contract on 27 October 2005 for the period
of two years, i.e. until 27 October 2007.
2.
According to the employment contract, the Respondent undertakes to remunerate
the Claimant as follows:
o USD 500 as monthly salary;
o USD 50 as bonus “for every victory’s game” and
o allowances for accommodation and meals.
3.
On 31 July 2006, the Claimant lodged a formal complaint at FIFA, claiming not to
have received the total amount of USD 2,600 from the Respondent with respect to
his salaries for the months of April, May, June and July, i.e. 4 x USD 500, and the
bonus in the amount of USD 600 for winning the Y championship and the Y Cup.
4.
In its response, the Respondent provided FIFA with a translation of a letter dated
25 April 2006, it had addressed to the President of the Futsal Association of Y,
informing him of its unilateral termination of the employment contract concluded
with the Claimant, due to the Claimant’s alleged poor football and personal skills.
In this letter, the Respondent mentioned that in the season 2005/2006, the
Claimant had only played in 2 out of 16 matches with its “basic team”.
5.
In his comments thereto, the Claimant informed FIFA on 17 November 2006 that
he had arrived in Y on 21 November 2005 and that he went to X for vacation on 13
May 2006 where he stayed for June and July. He continued to have played in 20
matches during this period in which the club became champion. He stated that the
letter dated 25 April 2006 which the Respondent had remitted to FIFA was false;
that he had not signed the document. Equally, he mentioned that he did not want
to return to the Respondent but requested payment of the aforementioned
outstanding salaries and the bonuses. As he had been on holidays in June and July,
he would, by means of an amicable agreement, agree to receive only the amount
of USD 1,600 from the Respondent with respect to the salaries for the months in
which he had actually worked for the Respondent and the bonuses.
6.
Even though having been invited by FIFA to submit its closing arguments in the
present matter several times, the Respondent failed to provide any final comments.
7.
Upon FIFA’s invitation, the Claimant informed that he was now playing for a third
division amateur Futsal club in W. Even though having been invited to indicate the
matches for which he pleaded the bonus payments, the Claimant did not provide
such information. He further mentioned that in order to make an
amicable agreement with the Respondent, he wanted to receive at least the
bonuses in the total amount of USD 600.
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (DRC) 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 31 July 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 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 Y club and a X player regarding a
dispute arisen in connection with an employment contract.
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 27 October 2005 and the claim was
lodged at FIFA on 31 July 2006. In view of the aforementioned, the Chamber
concluded that the FIFA Regulations for the Status and Transfer of Players (edition
2005, hereinafter: the Regulations) are applicable to the case at hand as to the
substance.
5.
In continuation, and entering into the substance of the matter, the members of the
Chamber started by acknowledging the above-mentioned facts and all further
documentation contained in the file. In particular, they took note that on 27
October 2005, the parties had concluded an employment contract for the period
until 27 October 2007 and that the parties had agreed, inter alia, on a monthly
salary of USD 500 and a bonus of USD 50 for every game victory.
6.
Equally, the members acknowledged the fact that the Respondent had unilaterally
terminated the employment contract with the Claimant on 25 April 2006 by
written notice, due to the alleged poor football and personal skills of the Claimant.
7.
The Chamber stated that it first had to analyse whether or not the Respondent had
a valid reason for the unilateral termination of the employment contract and to
determine whether the Respondent is liable for outstanding payments and/or
compensation.
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8.
In this respect, the Chamber pointed out that, as a general rule, a party may
terminate an employment contract for just cause at any time (cf. art. 14 of the
Regulations). The Chamber noted that in the case at stake, the Claimant had
indicated the alleged poor performance of the Claimant as reason for its early
termination of the employment contract.
9.
To that regard, the Chamber referred to its well-established jurisprudence
according to which an alleged poor performance of a player could not justify a
premature termination of an employment contract by a club as the assessment of
the performance of a player is a subjective perception which could not be
measured on an objective scale and therefore has to be considered as inadmissible
grounds for a premature termination of an employment contract.
10.
The Chamber stated that in view of the lack of objective criteria, the Respondent
had no just cause to unilaterally terminate the employment contract with the
Claimant and had therefore breached the employment contract without valid
reason.
11.
In continuation, the Chamber drew his attention to the fact that the Claimant
requested payment of USD 2,000 as outstanding salary payments for the months
of April, May, June and July 2006 and USD 600 as outstanding bonus payments
from the Respondent.
12.
The Chamber stated that it first had to determine the amount of outstanding
salaries for the time the Claimant actually rendered his services at the Respondent,
i.e. until 25 April 2006, date on which the Respondent unilaterally terminated the
employment contract with the Claimant. The Chamber stated that the Claimant
had apparently been paid up to (and including) March 2006 but that it was
uncontested that he had not been paid the salary of April 2006.
13.
Therefore, the members of the DRC decided that the salary for the month of April
2006 in the amount of USD 500 had to be paid to the Claimant.
14.
With respect to the request of the Claimant for payment of the bonuses in the
total amount of USD 600, the Chamber stated that according to the employment
contract, USD 50 as “bonus for every victory game” was due to the Claimant.
However, the Chamber noted that the Claimant had not informed FIFA for which
matches he claimed the allegedly outstanding bonus payments even though he
was invited to do so several times.
15.
The members of the Chamber considered that in virtue of art. 12 par. 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber, the Claimant had not substantiated his request for payment
of the bonuses and therefore decided that this request has to be rejected.
16.
The Chamber further declared that based on the fact that the Respondent had
terminated the employment contract with the Claimant without just cause,
consequently, apart from the undisputedly outstanding salary, the Claimant is
entitled to receive compensation from the Respondent for breach of contract
without just cause.
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17.
With respect to the amount of compensation to be paid to the Claimant, the
Chamber referred to art. 17 par. 1 of the Regulations. Taking into consideration
the particularities of the specific case, such as the fact that the employment
contract had been concluded for a period of two years, the Chamber deemed that
a lump sum payment of USD 1,500 to be adequate as compensation for breach of
contract.
18.
On account of the above, the Chamber decided that the Respondent has to pay the
amount of USD 2,000 to the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the X player P is partially accepted.
2.
The Respondent, Club Y, has to pay the total amount of USD 2,000 (USD 500 as
outstanding salaries and USD 1,500 as compensation) to the player P, within 30
days following the date of the communication of the present decision.
3.
In the event that the above-mentioned amount is not paid within the stated
deadline, an interest rate of 5% per year will apply as of expiry of the relevant
time-frame and the present matter shall be submitted to FIFA’s Disciplinary
Committee, so that the necessary disciplinary sanctions may be imposed.
4.
Any further claims submitted by the Claimant are rejected.
5.
The Claimant is directed to inform the Respondent 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:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2
CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
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www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
General Secretary
Enclosed: CAS directives
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