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,
against the
club B,
as Respondent,
regarding a contractual dispute arisen between the above-mentioned parties.
I.
Facts of the case
1.
On 1 June 2003, the player A with double nationality Germany/Turkey
(hereinafter; the player) and the club B SK (hereinafter; club B) signed an
employment contract valid until 31 May 2005, stipulating the following financial
rights of the player:
- Season 2003/04 (in total EUR 150,000):
- bonus per 16 June 2003
- 10 monthly salaries, each of
- match bonuses:
- if player starts match
- if player is summoned
- maximum for entire season
EUR 50,000
EUR 5,000
EUR 1,500
EUR 750
EUR 50,000
- Season 2004/05 (in total EUR 187,500):
- bonus per 16 June 2004
- 10 monthly salaries, each of
- match bonuses:
- if player starts match
- if player is summoned
- maximum for entire season
EUR 62,500
EUR 6,250
EUR 1,875
EUR 937.50
EUR 62,500
2.
Furthermore, the contract granted club B a unilateral option to extend the
employment contract for two further seasons beyond 31 May 2005. In case this
option would be exercised, the player would be entitled to the total amount of
EUR 500,000 for the two seasons. Such option was to be exercised until 30 April
2005.
3.
According to the player, in the season 2003/04, he played in five matches as from
the kick off, and was summoned for another 21 games. In the season 2004/05,
the player started in 4 matches, and was summoned to another 15 games.
4.
As from May 2005, a dispute arose between the player and club B about the
question if the contract expires on 31 May 2005 or if it is extended for two years.
5.
On 8 June 2005, the player informed club B in writing that their employment
relationship was terminated per 31 May 2005, and furthermore, requested club B
to immediately pay him the outstanding salaries.
6.
On 15 June 2005, club B informed the player in writing that their employment
relationship went on until 2 July 2007, and that therefore, he shall return to club
B after the vacation. The player’s termination notice was ignored.
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Player A / Club B
7.
On 23 June 2005, the player submitted a claim before FIFA against club B. On the
one hand, he requested for a declaration that the employment contract with
club B was terminated per 31 May 2005 and that therefore, he could sign a
contract with another club, and on the other hand, he claimed for unpaid
amounts of EUR 21,650 for the season 2003/04 and EUR 104,060 for the season
2004/05.
8.
On 27 August 2005, the Single Judge of the Player’s Status Committee decided
that the German Football Association is authorised to provisionally register the
player for one of its affiliated clubs (hereinafter; club C), with immediate effect.
Throughout the entire procedure before the Single Judge, neither the Football
Federation of Turkey nor club B provided FIFA with their position towards the
request of the German Football Association for the registration of the player.
9.
On 23 September 2005, the Dispute Resolution Chamber, asked to pass a decision
on the competence of FIFA to deal with the labour dispute at hand, decided that
it is competent to pass a decision on the claim submitted by the player against
club B. Such decision was notified to all the parties involved on 21 October 2005.
10.
On 10 February 2006, club B provided FIFA with its position on the player’s claim,
and thereby insisted that the present dispute falls into the competence of the
deciding bodies of the Turkish Football Association. Furthermore, club B declared
that the employment contract it had concluded with the player is still valid and
that no amount due towards the player according to the employment contract is
outstanding. Club B’s position was not supported by any documentary evidence.
11.
On 14 March 2006, club B provided FIFA with an additional submission, and
thereby, besides basically reiterating the contents of its former submission,
mentioned that the player had health problems but rejected the treatment
offered by the club’s doctors, but instead went to Germany for the treatment of
his injury, without club B’s permission. Notwithstanding this, all payments due to
the player under the employment contract were paid to the player. Moreover,
club B stated that the player was fined in accordance with the employment
contract with an amount of Turkey New Lira TRY 40,000, but that such fine had
never been deducted from the player’s salary. Documents in Turkish language
were submitted to FIFA to corroborate club B’s position.
12.
Requests made by the Administration of FIFA dated 11 May and 21 June 2006 to
club B to provide translations of the Turkish documents in one of the official
languages of FIFA remained unanswered.
13.
On 7 September 2006, the player submitted his final position on the matter and
thereby admitted that he was injured during the 2004/05 season for five months,
and that he went to Germany for treatment. However, the player underlined
that such course of action was agreed with club B.
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Player A / Club B
14.
Furthermore, the player stated that the Turkish documents submitted by club B
could not be taken into consideration in the present proceedings due to the lack
of a translation in one of the official languages of FIFA. Nevertheless, he stated
that three payment receipts submitted by club B appear to be forgeries.
15.
With regard to his financial claim against club B, the player stated that he had
received during the season 2003/04 from club B the amount of EUR 101,600, and
during the season 2004/05 the amount of EUR 42,500. According to the
employment contract, club B had to pay him for the season 2003/04 the amount
of EUR 150,000, and for the season 2004/05 the amount of 187,500. In
conclusion, the amount of EUR 48,400 was outstanding for the season 2003/04,
and EUR 145,000 for the season 2004/05, which have consequently to be paid to
him by club B.
16.
Subsidiarily, in case it would be considered that club B did not have to pay the
total of EUR 150,000 per season, respectively EUR 187,500, but, besides the salary
and the season bonus, only the match bonuses that had effectively become due,
the player calculated that in view of the matches he played or for which he was
summoned, club B had to pay him for the season 2003/04 the amount of EUR
123,250, and for the season 2004/05 the amount of EUR 146,562. In consequence,
club B still owed him EUR 21,650 for the season 2003/04, and EUR 104,062,50 for
the season 2004/05.
17.
Finally, as far as the fine of TRY 40,000 imposed by club B on the player was
concerned, the latter did not contest the fine as such in its substance, but
considered it as not being justified and not proportionate.
18.
On 2 November 2006, club B submitted its final position and thereby basically
reiterated its former submissions. Besides that, club B categorically contested the
forgery of any document, and mentioned that in order to support this position,
the player shall submit the originals of the payment receipts, which were,
allegedly, in his possession.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (DRC) made reference to its decision
dated 23 September 2005, which was notified to the parties involved in the
matter at stake on 21 October 2005, and by means of which it was decided that
the DRC is the competent body to pass a decision on the present contractual
dispute arisen between the player and club B. Therefore, the arguments of club
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Player A / Club B
B related to the competence of the DRC to pass a decision in the substance of
the present case could not be taken into consideration by the DRC, as this issue
has already been decided in the afore-mentioned decision, which, in the
meantime, has become final and binding.
2.
Subsequently, the DRC 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 DRC referred, on the one hand, to art. 26 par. 1 and 2 of the
Regulations for the Status and Transfer of Players (edition 2005) in their version
in accordance with FIFA circular nr. 995 dated 23 September 2005, and, on the
other hand, to the fact that the relevant contract at the basis of the present
dispute was signed on 1 June 2003, and the claim was lodged at FIFA on 23 June
2005. In view of the aforementioned, the DRC concluded that the 2001 edition of
the FIFA Regulations for the Status and Transfer of Players (hereafter: the
Regulations) are applicable on the case at hand as to the substance.
3.
In continuation, and entering into the substance of the present matter, the
members of the Chamber started by acknowledging the established facts of the
case and the arguments of the parties as well as the documentation contained in
the file, and in this respect, in view of the circumstances of the present case, first
of all stated that the following questions had to be tackled:
I.
Was the employment relationship between the player and club B validly
extended beyond 31 May 2005?
II. Does club B have to pay outstanding amounts to the player on account of
the employment contract in question?
4.
As far as the question is concerned whether the employment relationship
between the player and club B was validly extended beyond 31 May 2005, the
DRC first of all cast in doubt the validity of the contractual clause granting club B
an option to unilaterally extend the employment contract in question for two
further seasons beyond 31 May 2005. In fact, within the recent past, a whole set
of decisions of the DRC and of the CAS dealt with contractual clauses granting a
club an option to unilaterally extend an employment contract, and the common
conclusion of those decisions was that unilateral options for the extension of
employment contracts are, under most circumstances, to be considered as
invalid.
5.
In this respect, the DRC quoted, in particular, the decision of the CAS in the cases
CAS 2005/A/983, which states in its paragraph 127 that “le système de
reconduction unilatérale du contrat n’est pas compatible, dans son principe
même, avec le cadre juridique que les nouvelles règles de la FIFA avaient pour
but d’instaurer”.
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Player A / Club B
6.
However, for the following reason, the DRC did not have to further analyse the
validity of the contractual clause concerned in the present case. In fact, the said
contractual clause stipulated that the option in question was to be exercised
until 30 April 2005. In the collection of the facts to the present case, there is,
however, no indication that club B has exercised the option concerned, be it
before 30 April 2005, or be it at any other date. Furthermore, the DRC also noted
that club B, in its submissions in the present procedure, has never invoked that it
had validly executed the option in question.
7.
In view thereof, the DRC concluded that the contract between club B and the
player was not extended beyond 31 May 2005, but that it had expired on the
said date. Consequently, the DRC also declared that the player was therefore
entitled to sign an employment contract with the club of his choice with a
validity as of 1 June 2005, without that he would thereby breach an employment
contract with club B.
8.
After having said that, the DRC focused on the player’s claims against club B for
outstanding payments. In this respect, the DRC first of all had to establish the
amount to which the player was entitled during the validity of the employment
contract in question, i.e. between 1 June 2003 and 31 May 2005.
9.
The DRC firstly took into consideration the bonuses payable per 16 June 2003,
respectively 16 June 2004, in a total amount of EUR 112,500. Furthermore, the
DRC took into consideration the monthly salaries that had become due in the
relevant period of time, totalling also to the amount of EUR 112,500.
10.
And finally, the DRC had to establish the amount of match bonuses that the
player was entitled to. In this respect, the DRC had to establish the number of
games played by the player, in consequence to which match bonuses became
due. To that regard, the DRC took into account the list of games provided by the
player, which has remained uncontested by the club, and which therefore was
considered as an acceptable list in order to assess the total amount of match
bonuses due to the player. According to the said list, the player played in five
matches as from the kick off, and was summoned for another 21 games in the
season 2003/04. In the season 2004/05, the player started in 4 matches, and was
summoned to another 15 games. That makes, in accordance with the amounts of
the match bonuses stipulated in the employment contract, a total amount of
EUR 44,812.50 to be paid to the player on account of match bonuses.
11.
As a result, the DRC declared that the player was entitled to receive from club B
during the validity of the employment contract the total amount of EUR
269,812.50.
12.
In this respect, the DRC emphasised that the player’s argument that according to
the employment contract, club B had to pay him for the season 2003/04 the
amount of EUR 150,000 as total remuneration per season, and for the season
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Player A / Club B
2004/05 the amount of 187,500, is to be rejected. As a matter of fact, only the
monthly salaries and the yearly bonuses were to be paid unconditionally. As far
as the match bonuses are concerned, which were also included in the total
amount of remuneration per season, it lies in their nature that they are only
payable in case the specific conditions are fulfilled, in the present case the
participation to a match as from the kick off of the summon to a match.
Obviously, in case these conditions are not fulfilled, the match bonus does also
not become due, and therefore, the total amount of remuneration per year,
stipulated in the employment contract, is also not payable.
13.
In continuation, the DRC had to establish the amount that had been effectively
paid by club B to the player. In this respect, the DRC first of all noted that the
player admitted that he had received from club B during the season 2003/04
from club B the amount of EUR 101,600, and during the season 2004/05 the
amount of EUR 42,500, therefore the total amount of EUR 144,100.
14.
Furthermore, the DRC took into consideration club B’s position that all payments
due to the player under the employment contract had been made. However, the
DRC also noted that such position of club B was not proven by documentary
evidence, and could therefore, in accordance with the principle of the burden of
proof, according to which a party invoking a fact has to present the necessary
evidence, not be taken into account. As far as the Turkish documents submitted
by club B are concerned, the DRC, on the one hand, referred to art. 9 par. 1 of
the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (DRC), which stipulates that petitions to FIFA shall
be submitted in one of the four official languages of FIFA (English, French,
Spanish or German, cf. art. 8 par. 1 of the Statutes of FIFA), and on the other
hand to the fact that several requests made by the Administration of FIFA to club
B to provide translations of the said Turkish documents in one of the official
languages of FIFA remained unanswered.
15.
Furthermore, the DRC also underlined that, in contrary to club B’s position, FIFA
was not requesting the submission of the originals of the said documents, but
just a translation of the documents submitted to FIFA in Turkish language.
16.
As a result, the DRC followed the player’s position and took as granted that the
total amount of EUR 144,100 had been paid by the club to the player during the
validity of the employment contract.
17.
In conclusion, the DRC decided that club B had to pay EUR 269,812.50 to the
player during the validity of the employment contract in question, and that the
player had been paid effectively the amount of EUR 144,100. Therefore, the
amount of EUR 125,712.50 is still outstanding and thus has to be paid by club B
to the player. However, from this amount, the fine of TRY 40,000, which equals
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Player A / Club B
to EUR 20’000, imposed by club B on the player, was to be deducted, since the
player had not contested the fine as such in its substance. Consequently, club B
has to pay to the player the amount of EUR 105,712.50.
18.
Any further claim of the player was rejected.
*****
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Player A / Club B
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the player A is partially accepted.
2.
The club B SK has to pay the amount of EUR 105,712.50 to the player A within
30 days of notification of the present decision.
3.
The player A is directed to inform the club B directly and immediately of the
account number to which the remittance is to be made and to notify the DRC of
every payment received.
4.
If this amount is not paid within the aforementioned time limit, a 5% interest
rate per annum as of the expiry of the said time limit will apply and the matter
will be submitted upon request to the FIFA Disciplinary Committee for its
consideration and decision.
5.
Any further request filed by the player A is rejected.
6.
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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
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Player A / Club B