Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 January 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Rinaldo Martorelli (Brazil), member
Jean-Marie Philips (Belgium), member
Mohamed Mecherara (Algeria), member
on the claim presented by
the player, X, A,
as Claimant
against
the club, Y, B,
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 28 January 2006, the player X submitted a formal complaint against the club Y
to FIFA and explained that he encountered himself in the following situation:
-
In December 2005, he had absolved a selection process with the club, Y, and
had subsequently signed a contract with the club on 31 December 2005 valid
as from the same date. The said contract had been concluded for a duration
of seven months and provided for the payment of salaries in the total
amount of BBB 170,000,000. Furthermore, the player claimed that as soon as
the contract had been certified by the Football Manager Z in January 2006,
he had received 25% of the contract value from the club, namely BBB
42,500,000. According to the player, the remaining value of the contract was
to be paid out in seven monthly instalments amounting to BBB 18,214,000
each.
-
On 17 January 2006, the player X was allegedly informed verbally by Mr Z
that Y had decided to terminate the player’s contract due to his poor
performance during trainings, although his match performance had
apparently been excellent. The player states that, at the time, he was
suffering from toothache which had been affecting his performance during
trainings. The management of the club had been aware of the situation and
had been paying for the dental costs.
-
The player requested the payment of the remaining value of the contract
from the club. Thereupon, the club Y paid him BBB 12,500,000 and a air
ticket to the capital of B.
2.
Consequently, by means of his complaint submitted to FIFA on 28 January 2006,
the player claims the remaining balance of his contract amounting to BBB
115,000,000.
3.
On 15 March 2006, before the relevant player’s claim was forwarded to the
respondent, Y contacted FIFA via its Association and explained that the player X
had only undergone the selection process with the club Y. The club claimed that it
had paid him BBB 55,000,000 as compensation/ guarantee for the selection
process. However, after the completion of the selection process, it had decided not
to offer an employment contract to the player in question, and stated that
therefore no such contract had been signed.
Player X / Club Y
2
4.
Furthermore, Y referred to art. 6 point 2 of the “2005 Football Association of B
Regulation about Player Contract Standard”, which, according to the club, states
as follows:
“Player will obtain 25% of the contract total during 1st preseason (preparation),
will be paid at least 2 (two) weeks having signed the contract. Particularly for the
foreign player will be paid having received ITC, KITAS (Immigration Licence for
working and staying in B) and Professional Visa.”
In this respect, the club added that the player in question had not presented his
International Transfer Certificate, KITAS and professional visa to its management
and that therefore Yhad not signed a contract with the player. In this respect, the
Football Association of B informed FIFA that it had never been solicited by its
affiliate to request the International Transfer Certificate for the player, X.
5.
Along with its statement, Y provided FIFA with a contract dated 31 December
2005 entitled “Player’s Football Agreement” which had also been submitted to
FIFA previously by the player. The last page of the said document allocates space
for the signature of the following two parties:
-
6.
“The Second Party, Player”. Below is the signature of the player, X, along with
a stamp.
“The First Party, Manager of Y, Mr Q”. There is no signature directly above this
line, but under the signature of the player the document carries another
signature along with a stamp (both illegible).
Furthermore, art. 5 lit. a) of the aforementioned copy of the contract states:
The First Party [Club] entered this agreement and salary for a year BBB.
170,000,000 (…) paid in advance: 25% and its remaining paid in each year (for 12
months);
7.
FIFA forwarded the player’s claim to the respondent on 11 May 2006. In response
thereto, the Football Association of B emphasised once more that its affiliate had
not signed any employment contract with the player X and that therefore the
contract presented by the player was not valid and could not serve as a basis for a
claim. The player had not passed the selection process and had therefore received
BBB 55,000,000 as compensation for the participation in the examination process.
Player X / Club Y
3
Furthermore, the Football Association of B claimed that its board had already met
the player on 27 March 2006 and that the present dispute had been settled by
mutual agreement on this occasion.
8.
Along with its response, the Football Association of B enclosed a copy of a letter
from its affiliate requesting the player X to return the amount of BBB 55,000,000
relating to the “compensation/guarantee money for player selection” to the club
Y. Furthermore, the respondent enclosed a document dated 27 March 2006,
apparently signed by the player X, stating that “(…) all the case with the Player’s
Agent “Mr Z” has been settled through the payment with the amount BBB.
3.000.000 (…)”.
9.
By means of letters dated 23 May 2006 and 28 June 2006, the player X provided
FIFA with the following comments:
-
He was not referred to Y by a players’ agent. The players’ agent Mr Z was only
involved in the matter in order to legalize the contract and to assist the player
with regard to his International Transfer Certificate and work permit;
-
the manager of Y did sign the employment contract in question, not within
the space allocated for his signature, but beneath. The contract was also
validated by the manager’s stamp and legalized by an official stamp;
-
on 27 March 2006, the player X was invited to the office of the Football
Association of B and requested to withdraw his complaint against Y, which the
player refused. He claimed not having signed any statement in this respect;
-
he had gone to C on 30 March 2006 seeking new employment possibilities and
was allegedly signed by the football club P. However, his former club from A
had given a negative response to the request for the player’s International
Transfer Certificate, since the club apparently feared that issuing the
International Transfer Certificate to the Football Federation of C would affect
the player’s claim against Y;
-
finally, he referred to the several meetings which had apparently been
arranged between the Football Association of B and himself in connection
with the present matter, which would not have taken place if there had been
no valid contract.
Player X / Club Y
4
10.
In this respect, and as means of proof that a contract had been signed between Y
and the player, and that the Football Association of B was aware of the relevant
labour contract, the player X presented a document entitled “Foreign Player
Personal Data”, dated 7 January 2006 and apparently issued by the Football
Association of B. The said document is signed by the player and indicates Y as the
player’s “New Club”.
11.
In response to the statements of the player, the Football Association of Ba
contacted FIFA on 27 July 2006 and reiterated that no contract had been signed or
validated between its affiliate Y and the player.
12.
On account of all of the above, the player X requests the Dispute Resolution
Chamber to condemn Y to pay to him the amount of BBB 115,000,000 as per the
employment contract allegedly concluded between the parties involved on 28
January 2005.
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 hand. In this respect, the Chamber referred to art. 18
paras. 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 28 January 2006, thus after 1 July 2005. Therefore, the
Dispute Resolution Chamber concluded that the revised Rules Governing the
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 Dispute Resolution Chamber, art. 3 para. 1
of the above-mentioned Rules states that the Dispute Resolution Chamber shall
examine its jurisdiction in the light of arts. 22 to 24 of the current version of the
Regulations for the Status and Transfer of Players (edition 2005). In accordance
with art. 24 para. 1 in connection with art. 22 lit. 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.
Player X / Club Y
5
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving a player from A and an club from B
regarding an employment-related dispute between the parties.
4.
Subsequently, the Dispute Resolution Chamber analysed which edition of the
Regulations for the Status and Transfer of Players should be applicable to the
substance of the matter. In this respect, the Chamber referred, on the one hand,
to art. 26 paras. 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 player’s claim
had been lodged with FIFA on 28 January 2006. In view of the aforementioned,
the Dispute Resolution Chamber concluded that the current FIFA Regulations for
the Status and Transfer of Players are applicable to the substance of the present
case.
5.
Having established its competence to deal with the matter at hand, the Dispute
Resolution Chamber proceeded to enter into the substance of the case. In this
respect, the Dispute Resolution Chamber focussed on the questions whether
there had indeed been a contractual relationship between the parties involved,
whether this possible contract had been breached and, if so, whether
compensation for breach of contract was to be paid and at which amount.
6.
In this respect, the members of the Chamber first of all examined the document
which had been presented by the Claimant and which the latter claimed to be
the employment contract concluded between himself and the club Y. In this
regard, the members of the Chambers noted that, on the one hand, the relevant
document had uncontestedly been signed by the player X. Furthermore, with
regard to the second, illegible, signature and stamp beneath the line “The First
Party, Manager of Y, Mr Q”, the Dispute Resolution Chamber took due note of
the statement of the player, according to which the contract had been signed by
a representative of the club of Y, whereas the said club had repeatedly denied
that this had been the case. Nevertheless, the Chamber noted that the contract
listing the player X and the club Y as the two contract parties had undoubtedly
been signed by two parties, even on the copy of the contract which had
unsolicitedly been presented to FIFA by the Respondent Y.
7.
In continuation, and with reference to the statement of the club Y according to
which it had never concluded a contract with the Claimant, the Dispute
Resolution Chamber proceeded to deliberate on certain particular circumstances
of the present case. Firstly, it acknowledged that the club had, even before it
Player X / Club Y
6
had been contacted by FIFA in connection with the dispute at hand, submitted
its position regarding the case to FIFA on 15 March 2006 and had, on the same
occasion, enclosed a copy of the last page of the contract which it claimed not to
have signed. In this connection, the members of the Chamber raised the
questions as to why the club Y deemed that it had to defend itself even before it
had been notified of the player’s claim by FIFA, and why it was, almost four
months after the selection process in which the player X had participated, in
possession of a contract obviously signed by the relevant player and another
party, but which it claims not to have concluded with the said player.
8.
The Dispute Resolution Chamber subsequently turned its attention to the fact
that the Respondent had maintained having paid the amount of BBB 55,000,000
to the player X, as also acknowledged by the player. According to the club’s
letter to the player dated 11 March 2006, the said amount had been composed
of a “compensation / guarantee money for player selection” in the amount of
BBB 42,500,000 and an “Additional The compensation/ guarantee money for
player selection” in the amount of BBB 12,500,000. In this connection, it
attracted the attention of the members of the Chamber that the first amount of
BBB 42,500,000 precisely corresponded to the 25% of the contract value which
would have had to be paid to the player in advance in accordance with art. 5 lit.
a) of the alleged employment contract.
9.
Furthermore, the Dispute Resolution Chamber deliberated on the circumstance
that the Respondent claimed having paid the amount of BBB 55,000,000 as
compensation for a player whom it had decided not to employ after the
selection process. According to the club, it had demanded the reimbursement of
the said amount from the player on 11 March 2006. In this respect, the Chamber
deemed such a proceeding on the part of the club to be somewhat
contradictory, firstly for allegedly having paid the considerable amount of BBB
55,000,000 to the player for an apparently unsuccessful selection process, and
subsequently for having requested the amount to be paid back three months
after the said trials.
10.
The Chamber then proceeded to examine the document entitled “Foreign Player
Personal Data” which had apparently been issued by the Football Association of
B. The said document refers to the Respondent as the “new club” of the player X
and had never been contested by the relevant Federation or its affiliated club.
Player X / Club Y
7
11.
On account of the numerous above-mentioned circumstances, the Dispute
Resolution Chamber found that it had no alternative but to assume that the
player X and the club Y had indeed entered into an employment relationship
and that, since the player had approached FIFA with his claim only one month
after the conclusion of the contract, the said relationship had been prematurely
terminated.
12.
Having established the above, the Dispute Resolution proceeded to examine the
circumstances of the early termination of the relevant labour relationship.
Thereby, the members of the Chamber on the one hand acknowledged the
statement of the Claimant, according to which he had been released without just
cause, and on the other hand took note of the circumstance that the club had
failed to contest the relevant allegation of the player or to provide FIFA with any
explanations possibly justifying the termination of the said employment
relationship. The members of the Chamber particularly considered the fact that
the Respondent had, throughout the proceedings, denied the existence itself of
the contractual relationship in question, to demonstrate not only the lack of
interest of the club in its employee X, but also that the club had not been acting
in good faith. In view of the above, the Chamber concluded that the Respondent
had terminated the employment contract entered into with the player X without
just cause.
13.
In this context, the members of the Dispute Resolution Chamber turned their
attention to the consequences of such an unjustified breach of contract as set
out in art. 17 para. 1 of the Regulations for the Status and Transfer of Players. On
the basis of the said article, the Chamber concluded that the Respondent was
liable to pay compensation to the Claimant for breach of contract.
14.
For the assessment of the applicable amount of compensation, the Chamber first
referred to art. 17 para. 1 of the Regulations, in particular to the non-exhaustive
enumeration of the objective criteria which need to be taken into account.
15.
In continuation, the Dispute Resolution Chamber took due note of the fact that
the player X claims the remaining value of the contract as compensation for the
breach of the said agreement, amounting to BBB 115,000,000. In this regard, the
members of the Chamber acknowledged that the player had apparently not
been able to find another club during the remaining contract period so as to
limit his damages. However, the Dispute Resolution Chamber also took into
account that the Claimant admitted having received 25% of the contract value
Player X / Club Y
8
immediately upon conclusion of the contract, and that he had merely been
rendering his services with Y for 17 days. The Chamber therefore concluded that
not the entire remaining contract value, but the amount of BBB 45,000,000 was
to be considered reasonable and justified as compensation for breach of
contract.
16.
Furthermore, since the player X had apparently been playing for the club during
January 2006, the Dispute Resolution Chamber deemed that the player had the
right to receive the entire salary for the relevant month amounting to BBB
18,214,000. Since the Claimant admits already having received the amount of
BBB 12,500,000 from Y in January 2006, the Dispute Resolution Chamber decided
that the club was to pay him the remaining balance of BBB 5,714,000.
18.
On account of all of the above, the Dispute Resolution Chamber decided that the
club Y must pay to the player X the outstanding salary for January 2006,
amounting to BBB 5,714,000, as well as compensation for breach of contract in
the amount of BBB 45,000,000.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, the player X, is partially accepted.
2.
The Respondent Y shall pay the amount of BBB 50,714,000 to the Claimant X
within the next 30 days.
3.
In the event that the above-mentioned amount is not paid within the indicated
deadline, the present matter shall be submitted to FIFA’s Disciplinary Committee,
so that the necessary disciplinary sanctions may be imposed.
4.
The Claimant, the player X, is instructed to inform the Respondent, the club Y,
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.
5.
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
Player X / Club Y
9
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:
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
On behalf of the
Dispute Resolution Chamber:
Markus Kattner
Acting General Secretary
Encl.
CAS directives
Player X / Club Y
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