Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 January 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Joaquim Evangelista (Portugal), member
Ivan Gazidis (USA), member
Reinhard Rauball (Germany), member
on the claim presented by the player
AAA, Xxx,
as Claimant
against the club
BBB, Yyy,
as Respondent
regarding a contractual dispute between the parties
I.
Facts of the case
1.
On 17 February 2006, the Xxx player, AAA (hereinafter: the Claimant), and the
Yyy club, BBB (hereinafter: the Respondent), signed an employment contract for
the duration of 3 months, valid from 15 February until 15 May 2006. According
to this contract the Claimant is, inter alia, entitled to a monthly negotiable salary
in the amount of EUR 4,000.
2.
On 8 August 2006, the Claimant lodged a claim against the Respondent at FIFA.
In particular, the Claimant requested from the Respondent the payment of the
allegedly outstanding third monthly salary, i.e. the salary for the period between
15 April and 15 May 2006, in the amount of EUR 4’000.
3.
In its late response, the Respondent stated that the Claimant had been
substituted in the match of 8 April 2006 due to his poor performance and, on the
following day, had left the club without giving notice and without its
authorization. Therefore, the Respondent requested that the Dispute Resolution
Chamber should take into consideration that the Claimant had not fulfilled his
contractual obligations.
4.
In his replica, the Claimant argued that, on the day in question, the director of
the Respondent had told him to go home. In this respect, the Claimant affirmed
that he had asked the Respondent for a document confirming that he was
dismissed, however, without success.
5.
Subsequently, the Respondent omitted to give any further comments.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber had to analyze 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 August 2006, as a consequence the Chamber concluded
that the revised Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2005, hereinafter: the Procedural
Rules) to 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 Procedural
Rules states that the Dispute Resolution Chamber shall examine its jurisdiction in
the light of articles 22 to 24 of the 2005 edition of the Regulations for the Status
and Transfer of Players. In accordance with art. 24 par. 1 in combination with art.
Player AAA, Xxx / Club BBB, Yyy
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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 Xxx player and an Yyy club regarding
the alleged non-fulfilment of 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 2005 edition of Regulations for the Status and
Transfer of Players in accordance with FIFA circular no. 995 dated 23 September
2005 and, on the other hand, to the fact that the relevant employment contract
at the basis of the present dispute was signed on 17 February 2006 and the claim
was lodged at FIFA on 8 August 2006. In view of the aforementioned, the
Chamber concluded that the 2005 edition of the Regulations for the Status and
Transfers of Players (hereinafter: the Regulations) is applicable to the case at
hand as to the substance.
5.
In continuation, and entering into the substance of the matter, the Chamber
acknowledged that, on 17 February 2006, the Claimant and the Respondent
signed an employment contract for the duration of 3 months, valid from 15
February 2006 until 15 May 2006, according to which the Claimant was entitled
to a salary of EUR 4,000 per month.
6.
In this regard, the Chamber noted that, on the one hand, the Claimant, based on
the said employment contract, claims from the Respondent the allegedly
outstanding third monthly salary for the period between 15 April and 15 May
2006 in the amount of EUR 4,000. In particular, the Chamber took note that the
Claimant argues that, on 9 April 2006, the director of the Respondent orally told
him to leave.
7.
On the other hand, the Chamber took note that the Respondent initially declares
that the Claimant left the club without its authorization on 9 April 2006 and,
therefore, was found in breach of contract, i.e. the third salary was not due since
the contract has been previously terminated by the Claimant without just cause.
8.
In continuation, the Chamber went on to deliberate whether the facts of the
case constitute a just cause for the Claimant to prematurely terminate the
employment contract.
9.
In this respect, the Chamber acknowledged that, at a later stage, in particular
after the Claimant presented the argument that, on the day in question, the
director of the Respondent orally told him to leave, the Respondent did not
Player AAA, Xxx / Club BBB, Yyy
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contest this fact anymore despite having been asked by FIFA to comment on the
position expressed by the Claimant.
10.
As a consequence, the Chamber underlined that in this way the Respondent
renounced to its right to defense and, thus, accepted the allegation of the
Claimant that he left the club with its authorization and upon its explicit request.
11.
Furthermore, the Chamber emphasized that according to the well-established
jurisprudence of the Dispute Resolution Chamber in similar cases the poor
performance of a player cannot be accepted as a just cause for the termination
of the contract on the part of a club.
12.
In view of the above, and taking into consideration that it is established that the
Claimant left the Respondent with the authorization of the latter and had in
particular been expressly requested to leave by the Respondent’s director, the
Chamber reached the conclusion that the Claimant terminated the relevant
employment contract with just cause.
13.
Consequently, the Chamber established that the Respondent in accordance with
art. 17 par. 1 of the Regulations is also liable to pay compensation for the
committed breach of contract.
14.
In this regard, and taking into consideration the rest value of the relevant
employment contract, i.e. the salary for the period between 15 April and 15 May
2006, the Chamber established that it was adequate to award the Claimant
compensation for breach of contract in the amount of EUR 4,000.
15.
In conclusion, the Dispute Resolution Chamber decided that the Respondent
must pay the amount of EUR 4’000 to the Claimant and, thus, the Claimant’s
claim is accepted.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, AAA, is accepted.
2.
The Respondent, BBB, must pay the amount of EUR 4,000 to the Claimant, AAA,
within 30 days as from the date of notification of this decision.
3.
In the event that the above-mentioned total amount is not paid within the
stated deadline, an interest rate of 5% per year will apply as of expiry of the
aforementioned time limit and the present matter shall be submitted to FIFA’s
Disciplinary Committee, so that the necessary disciplinary sanctions may be
imposed.
Player AAA, Xxx / Club BBB, Yyy
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4.
The Claimant, AAA, is directed to inform the Respondent, BBB, 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
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
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
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl. (CAS directives)
Player AAA, Xxx / Club BBB, Yyy
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