Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 January 2008,
in the following composition:
Mr. Slim Aloulou (Tunisia), Chairman
Mr. Reinhard Rauball (Germany), Member
Mr. Ivan Gazidis (USA), Member
Mr. Joaquim Evangelista (Portugal), Member
Mr. Theo Van Seggelen (The Netherlands), Member
on the claim presented by the player
S
as “Claimant / Counter-Respondent”
against the club
M
as “Respondent / Counter-Claimant”
regarding outstanding amounts on the basis of an
employment contract concluded between the parties.
./…
I.
Facts of the case
1.
On 23 July 2002, the player S (hereinafter: the player) and the club M (hereinafter:
the club) signed an employment contract valid until 23 July 2005.
2.
The relevant employment contract establishes:
• for the first year: a monthly salary of USD 20,000
• for the second year a monthly salary of USD 22,000
• for the third year a monthly salary of USD 25,000
3.
On 3 December 2004, the Football Confederation sent to FIFA a claim of the player
against the club requesting the amount of USD 429,000 composed by USD 254,000
(11 monthly salaries, as from January 2004 until November 2004) plus a damage
compensation of USD 175,000 for the alleged club’s violation of the employment
contract for the remaining time of the duration of the relevant employment
contract (7 months as from 23 November 2004 until 23 July 2005) and to impose
disciplinary sanctions to the club.
4.
In particular, the player stated that:
•
on December 2003 he left for holidays to … having to return to his club on
January 2004;
•
the club neither sent him a return ticket to join the team again, nor informed
him the precise date in which he had to come back;
•
the player tried to contact the club but the latter did not react;
•
consequently the player sent letters dated 6 and 13 October 2004 to the club
requesting outstanding amounts, i.e. 10 monthly salaries as from January 2004
until October 2004. However the club did not react;
•
on 23 November 2004, the player sent a letter to the club terminating the
contractual relationship alleging just cause due to the alleged breach of the
employment contract by the club’s side, i.e. non payment of 11 monthly
salaries.
5.
The club answered FIFA’s request first refusing categorically all the requests of the
player for invalid and groundless and lodging a counter-claim for breach of
contract by the player requesting a compensation of USD 500,000 as “signage
bonus” paid to the player.
6.
In particular the club stated:
•
that the player left on November 2002 for holidays and he never came back;
•
that the player was physically not ready for playing in the first team, therefore
he only played in 2 matches for the 1st team and 8 more for the 2nd team of
the club;
•
that the club paid to the player all the amounts agreed in the employment
contract even though he was playing mostly for the 2nd team;
•
by order 170 dated 15 November 2002 issued by the club the players had
authorization for going on holidays as from 20 November until 18 December
2002;
•
the player did not come back in that date and therefore was absent of the
general preseason meeting held on 19 December 2002;
Player S / Club M
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•
•
•
that by order 225a dated 30 December 2002 the player was dismissed by the
club for unauthorized absence;
that the relevant labour relationship was finished on 30 December 2002;
the player informed the club via his agent that he refused to return to
continue his professional career for the club.
7.
The player refused categorically the club ‘s allegations and stated that:
•
if the club considered that the player refused to come back to and
consequently he breached the relevant employment contract, the club should
lodged a complaint in front of FIFA and request sanctions to the player but it
did not happen.
•
the club did not show any interest for the services of the player proof of that
is that the player sent several letters to the club not receiving any reaction
from them.
•
if the club paid the amount of USD 500,000, he should be more diligent
protecting its rights and investments.
•
the dismissal order dated 30 December 2002 alleged by the club does not
contain the signature of the player, therefore is groundless and invalid.
8.
The club sent a final position to FIFA maintaining its previous allegations.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the case at hand. In this respect, it took note that the present matter
was submitted to FIFA on 3 December 2004. Consequently, the Rules Governing
the Practice and Procedures of the Dispute Resolution Chamber, edition 2001,
(hereinafter: the Procedural Rules) are applicable to the matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 2 par. 2 lit b. of the
Procedural Rules and confirmed that in accordance with art. 42 par. 1 lit (b) (i) of
the FIFA Regulations for the Status and Transfer of Players (edition 2001), the
Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension
between a player and a club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2008), the edition 2001 of the Regulations for the Status and Transfer of
Players (hereinafter: the Regulations) are applicable to the matter at hand as to
the substance.
Player S / Club M
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4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter and started by
acknowledging that undisputedly both parties signed an employment contract on
23 July 2002 to be valid until 23 July 2005.
5.
Moreover, the Chamber noted that the labour relationship between the player S
(hereinafter: the Claimant) and the club M (hereinafter: the Respondent) run its
normal course until the player left for holidays to his country, ...
6.
At this stage, the Chamber pointed out that both parties have contradictory
positions regarding the date, specifically the year, in which the player left … for
holidays and did not come back.
7.
On the one hand, the Claimant states that he left on December 2003 and on the
other hand, the club states that the player left … on November 2002. Therefore,
the Chamber underlined that both parties have a discrepancy of one year between
November 2002 and December 2003.
8.
In continuation, the Chamber pointed out that, upon request of FIFA, the Football
Union of formally informed that the Claimant was not part of the list of players
provided by the Respondent for the season 2003. Therefore the Chamber
remarked that, based on the official report, the player was not in a position to
take part of any match of the respondent during the season 2003.
9.
In addition, the Chamber took note that the Claimant alleged trying to contact
the Respondent on January 2004 and having send three letters to the respondent,
two on October 2004, and one on November 2004. However, the Chamber
remarked that the Claimant did not provide with enough evidences that the
Respondent, in fact, was informed about his attempts to contact it or was in
receipt of the aforementioned letters.
10.
Moreover, the Chamber took note that based on the Claimant’s allegations he left
… on December 2003 and he send the first letter to the respondent on 6 October
2004. Therefore the Chamber remarked that it took 10 months to the Claimant to
send a formal written communication to the Respondent.
11.
In view of the foregoing, the Chamber concluded that in view of the information
and documentation received during the proceeding of the matter at stake, the
player could not prove sufficiently that he left on December 2003.
12.
Consequently, the members of the Chamber concluded that the Claimant left for
holidays on November 2002 and therefore was absent without a justified reason as
from 18 December 2002, date in which the Claimant should be back in … after his
holidays. Indeed, the Chamber noted that the Claimant was not able to prove that
he was absent as from 18 December 2002 with the authorization of the club.
13.
In view of all the above, the members of the Chamber concluded that the club
breached the relevant employment with just cause on 30 December 2002.
Player S / Club M
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14.
In continuation, the Chamber took note that the parties did not have any
relationship or contact for two years, as from the date in which the player left …,
i.e. November 2002, until the date in which the Claimant lodged a formal
complaint at the competent FIFA deciding body on 3 December 2004.
15.
The Chamber focussed its attention to the Respondent’s counterclaim submitted
to FIFA through the Club on 6 May 2005.
16.
In this respect, the Chamber pointed out that according to art. 44 of the
Regulations for the Status and Transfer of Players (edition 2001), the Dispute
Resolution Chamber does not deal with any litigation if more than two years have
elapsed since the facts leading to the dispute arose, i.e. 18 December 2002, date as
from the Claimant was absent without authorization after his holidays.
17.
Therefore, the Chamber decided that the counterclaim of the Respondent is
prescripted taking in consideration that the Claimant should be back in … on 18
December 2002.
18.
In view of all the above, the Dispute Resolution Chamber decided to reject the
claim of the Claimant and the counter-claim of the Respondent.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, the player S, is rejected.
2.
The counter-claim of the Respondent, the club M, is rejected.
3.
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:
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
Player S / Club M
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For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player S / Club M
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