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), President
Philippe Piat (France), Member
Rinaldo Martorelli (Brazil), Member
Jean-Marie Philips (Belgium), Member
Mohamed Mecherara (Algeria), Member
on a dispute between the
Player A,
the “Claimant”
and the
Club B,
the “Respondent”
regarding a contractual dispute arisen between the above-mentioned parties.
I.
Facts of the case
1.
On 1 March 2006, the player A (hereinafter; the player) and the club B
(hereinafter; the club) signed an employment contract valid from the date of
signature until 15 December 2006, stipulating a monthly salary of XYZ 390,000.
2.
On the same date, the same parties signed an appendix to the contract,
according to which the player was entitled to several bonuses for appearances
and particular performance.
3.
Furthermore, according to the appendix, the club is entitled to unilaterally
review the player’s salary in case he does not “execute his duties honestly,
observe rules of labour discipline, safety measures, execute orders and directions
of first-hand manager and other officials of employer; observe training,
competition, preseason training routine; improve qualification and professional
skills”.
4.
On 15 July 2006, the player reminded the club of its contractually financial
obligations towards him, as they allegedly were not respected by the club
entirely.
5.
On 20 July 2006, the player complained before FIFA against the club,
maintaining that several monthly salaries and two match bonuses were unpaid,
that his salary was decreased unilaterally by the club as from the beginning of
the contract to XYZ 332,500, and moreover, that the club had placed him “on
transfer with an outrageous fee which no club […] can afford”.
6.
Moreover, the player informed FIFA that he last offered his services to the club
on 28 June 2006.
7.
Therefore, the player requested to be released from the club immediately, and
claimed for the payment of the following outstanding amounts in USD, asserting
that his monthly salary amounted to USD 3,000.
•
•
•
•
•
8.
Salary April 2006
Salary May 2006
Salary of June 2006
Salary of July 2006
Total
USD 750
USD 1’750
USD 3,000
USD 3,000
USD 8,500
Later, the player informed FIFA that he was paid USD 500 by the club on 16
August 2006, and that therefore, only the amount of USD 7,735 was still
outstanding.
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Player A/ Club B
9.
On 18 August 2006, the club provided its answer to the claim, and thereby
emphasised that in accordance with the appendix, the player’s monthly salary
was decreased to XYZ 342,251.
10.
Furthermore, the club stated that for the month of June 2006, XYZ 230,000 was
paid, and therefore XYZ 87,167 still outstanding.
11.
On 23 August 2006, the club amended its position by maintaining that the player
was transferred from the main team to the youngster’s team of the club on 22
June 2006, without that his contractual salary was modified. However, the player
had not complied with his contractual duties since that date.
12.
On 29 August 2006, the club again amended its position by emphasising that in
the meantime, the problem of the unpaid salaries was solved, and referred to a
document of its financial department, according to which it had no more debts
towards the player. Such document is not signed by the player.
13.
Furthermore, the club mentioned that it would not object if the player would
leave the club temporarily in order to continue his professional activity.
14.
On 20 September 2006, the club submitted copies of payment receipts signed by
the player, according to which he was paid the following amounts:
•
•
•
•
•
15.
On 3 November 2006, the club provided several other documents according to
which the player, allegedly, should have received several payments. These
documents are not signed by the player. However, the club then also submitted a
further payment receipt signed by the player, according to which in addition he
received the following amount:
•
16.
10 April 2006 (salary March) XYZ 390,000
2 June 2006 (salary)
XYZ 57,500
13 June 2006 (salary)
XYZ 57,500
23 June 2006 (salary)
XYZ 57,500
26 June 2006 (salary)
XYZ 57,500
10 May 2006 (premium)
XYZ 70,000
By means of the same submission, the Football Union of the club informed FIFA
that its Disciplinary Body had recently decided , apparently on 8 September 2006,
that all financial claims of the player are not valid, as they were unfounded as
the club had fulfilled all its obligations towards the player. Moreover, the
Disciplinary Body of the Football Union of the club had informed the player that
he could apply to the criminal courts of the country of the club with regard to
the alleged forgery of financial documents.
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Player A/ Club B
17.
According to information of the Football Union of the club, such decision was
passed after having taken into consideration the documents submitted by the
club.
18.
On 9 December 2006, in reply to FIFA’s request to provide his position with
regard to the decision taken by the Disciplinary Body of the Football Union of
the club, the player reiterated his former complaints, but did not take position
with regard to the decision allegedly taken by the Disciplinary Body of the
Football Union of the club.
19.
Furthermore, the player invoked that his signatures on the financial documents
issued by the club were forged.
20.
Later on, the player informed FIFA that the decision taken by the Disciplinary
Body of the Football Union of the club, which was invoked by the club, was
passed without that he was represented before the deciding body or informed
about the procedure in question.
21.
On 15 December 2006, the club provided FIFA with its final position, and thereby
maintained that the claim before the Disciplinary Body of the Football Union of
the club was filed by the player himself on 20 July 2006, in continuation to which
the respective procedure was opened and the club was heard.
22.
Despite several requests made by FIFA, the Football Union of the club never
provided FIFA with a translation of the decision it allegedly took in the matter at
stake.
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 20 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 current version 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 employment4/9
Player A/ Club B
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 club and a player from different
countries regarding a contractual dispute in connection with an employment
contract.
4.
After having established the above, the Chamber turned to the club’s argument
that the present claim was filed by the player already before the Disciplinary
Body of the Football Union of the club, which had entirely rejected the player’s
claim, i.e. that the issue at stake would be a res iudicata. The Chamber also took
note of the player’s respective position that the decision of the Disciplinary Body
of the Football Union of the club, which was invoked by the club, was passed
although he was neither represented before the deciding body nor informed
about the procedure in question. Besides that, the Chamber noted that despite
several requests made by FIFA, the Football Union of the club never provided
FIFA with a translation of the decision it allegedly took in the matter at stake.
5.
Considering the above, the Chamber first of all underlined that the positions of
the parties with regard to the procedure before the Disciplinary Body of the
Football Union of the club are diametrically opposed. Therefore, the Chamber
made reference to the fact that FIFA was never provided with a translation of
the decision the Football Union of the club allegedly took in the matter at stake,
despite several requests made by FIFA.
6.
In this respect, the Chamber referred to the legal principle of the burden of
proof, according to which each party has to prove the facts upon which it relies
in order to establish its rights. Moreover, the Chamber referred to art. 9 par. 1
let. e of the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber, according to which documents of
relevance submitted to the Dispute Resolution Chamber need to be translated
into one of the official languages of FIFA. According to art. 8 of the FIFAStatutes, the official languages of FIFA are English, French, Spanish and German.
7.
In view of this, and in view of the lack of submission of a translation of the
relevant decision allegedly taken by the Disciplinary Body of the Football Union
of the club, the Chamber had to conclude that no procedure took place in the
present matter before the Disciplinary Body of the Football Union of the club,
and that no decision was therefore ever taken by the latter in this case. The issue
at hand is thus not res iudicata.
8.
Consequently, and considering that the prerequisites of the competence of the
Dispute Resolution Chamber to pass a decision in the substance of the matter at
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Player A/ Club B
stake are fulfilled, the Dispute Resolution Chamber concluded to be in a position
to rule on the present issue.
9.
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 1 March 2006 and the claim was
lodged at FIFA on 20 July 2006. In view of the aforementioned, the Chamber
concluded that the current FIFA Regulations for the Status and Transfer of
Players (edition 2005, hereafter: the Regulations) are applicable to the case at
hand as to the substance.
10.
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 three questions had to be tackled:
1)
2)
3)
To which monthly contractual salary was the player entitled?
Did the player have a just cause to terminate the employment
contract factually by 28 June 2006?
Does the club have to pay outstanding amounts to the player?
11.
As far as the first of the above-mentioned questions is concerned, the Chamber
took into account that the employment contract concluded between the parties
stipulates a monthly salary of XYZ 390,000. Furthermore, the Chamber noted
that according to the appendix to the employment contract, the club is entitled
to unilaterally review the player’s salary under certain circumstances. And finally,
the Chamber took note of the club’s contradictive positions with regard to a
possible revision of the salary. In fact, on 18 August 2006, the club invoked that
it had reviewed the player’s salary in accordance with the appendix, without
indicating any reason for such revision. On 23 August 2006, however, the club
maintained that the player’s contractual salary was not modified.
12.
Without considering the contradiction of the club’s positions with regard to the
revision of the player’s salary, the Chamber stated that the unilateral revision of
a player’s salary by his club, as a general rule, cannot be permitted, even if a
contractual clause grants this right to the club, because such a clause would
disturb the necessary balance of rights and duties of the parties to an
employment contract in an inadmissible way. Therefore, the Chamber concluded
that the player’s monthly contractual salary amounts to XYZ 390,000.
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Player A/ Club B
13.
With respect to the second question, the Chamber first of all referred to the
general principle of labour law that the persistent failure of a club (employer) to
respect its contractual obligations towards a player (employee) without just
cause is to be considered as an unjustified breach of an employment contract by
the club.
14.
In the present case, as seen above, the player was entitled to a salary of XYZ
390,000 per month, as of March 2006, and until June 2006, when he left the club.
According to the payment receipts signed by the player, which were submitted
by the club, he received the following amounts:
•
•
•
•
•
•
10 April 2006
2 June 2006
13 June 2006
23 June 2006
26 June 2006
10 May 2006
Total
XYZ 390,000
XYZ 57,500
XYZ 57,500
XYZ 57,500
XYZ 57,500
XYZ 70,000
XYZ 690,000
15.
The unsigned documents submitted by the club with the aim to prove payments
made to the player could not be taken into account, since they do not have
probative value due to the lack of the player’s signature.
16.
With respect to the documents submitted by the club bearing the player’s
signature, the Chamber also took into account the player’s position that his
signatures on the relevant documents issued by the club were forged, and in
view of this, emphasized that, as a general rule, it has no competence to
adjudicate on alleged criminal offences, such as forgery of signature or
documents.
17.
In consequence, in such cases, the Dispute Resolution Chamber has to refer the
parties to the competent national criminal authorities.
18.
Moreover, the Chamber stated that, again as a general rule and with the
possible exception of cases of evident divergence of the signatures, as long as
the falsification of a signature or a document is not established by a final and
binding decision of a competent criminal authority, the DRC has to presume the
authenticity of the signature or the document in question.
19.
Consequently, the Chamber had to presume that the signed payment receipts
submitted by the club, and in particular the player’s signatures on them, were
authentic.
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Player A/ Club B
20.
Therefore, the Chamber had to conclude that the player was entitled to receive
from the club from March to June 2006 the total amount of XYZ 1,560,000 on
account of monthly salaries (4 x XYZ 390,000), and effectively received XYZ
690,000 for the period of time in question.
21.
As a consequence, in the present case, the behaviour of the club is to be
considered as an unjustified breach of contract. The player had therefore a just
cause to factually terminate the contract with the club by leaving the latter on
28 June 2006.
22.
Finally, the Chamber turned to the third question, and thereby, in application of
the legal principle of pacta sunt servanda, decided that the club has to pay to the
player the outstanding salary amounts that became due during the employment
relationship in question, which is the difference between XYZ 1,560,000 (amount
that had become due) and XYZ 690,000 (amount that was effectively paid to the
player), thus XYZ 870,000.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the player is partially accepted.
2.
The club has to pay the amount of XYZ 870,000 to the player.
3.
The amount due to the player has to be paid by the club within the next 30
days as from the date of notification of this decision.
4.
If the aforementioned sum is not paid within the aforementioned deadline, the
present matter shall be submitted to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
5.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as from the first day of expiry of the
aforementioned deadline.
6.
The player is directed to inform the club immediately of the account number to
which the remittance is to be made and to notify the Dispute Resolution
Chamber of every payment received.
7.
Any further request of the player is rejected.
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Player A/ Club B
8.
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
General Secretary
Encl.
CAS directives
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Player A/ Club B