Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 9 January 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Carlos Soto (Chile), member
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
on a matter between the player
J,
as Claimant / Counter-Respondent
and the club,
C,
as Respondent / Counter-Claimant
regarding an employment related contractual dispute
arisen between the player and the club.
I.
Facts
1.
The club C (hereinafter: the Respondent) and J (hereinafter: the Claimant) signed
an employment contract in May 2006 for the period 1 May 2006 to 1 February
2007.
2.
The contract signed by the parties stipulates that:
a. The salary is 60,000 (EUR 5,828.50) payable in six instalments from May
2006.
b. The club will provide the player with a furnished apartment.
c. The player guarantees to leave S immediately at the end of the season, by
31 October 2006 at the latest (for tax reasons).
3.
Furthermore, the Claimant would appear to have received a signing-on fee of
80,000 (EUR 7,578.20), as has been confirmed by both parties.
4.
On 20 June 2007 the Claimant submitted a claim against the Respondent to FIFA.
He alleges that the Respondent registered him as an amateur, even though he is a
professional and received a professional’s salary. According to the Claimant, he
has a ”fake professional contract“ and has allegedly lost his accident insurance as
a result. He alleges that he was injured and had to cover the cost of his medical
treatment for five months.
5.
He seeks the following payment from the Respondent:
- all his salary after tax, as he alleges that the Respondent did not pay any tax on
his salary.
- compensation for his injuries and the emotional distress he suffered.
- the sum of EUR 300,000 to 500,000 in compensation for changing his status
from professional to amateur, as well as sanctions to be imposed on the
Respondent for this action.
6.
Having been asked to substantiate his claim, the Claimant requested the
Respondent to pay him five months’ salary from October 2006 to February 2007.
7.
The S Football Association informed FIFA that the Claimant had already lodged a
claim with its court of arbitration but had withdrawn it and the case had been
closed on 25 June 2007.
8.
The Respondent disputes all the accusations and rejects the Claimant’s claim.
8.1
With regard to the form of payment, the Respondent has specified that a total
contractual amount of 140,000 (EUR 13,256.50) was agreed for the period of the
contract. According to the Respondent, the two parties had agreed that the
amount of 80,000 would be paid as a signing-on fee and that the amount of
60,000 would be paid in instalments of 10,000 for the months of May to October
2006. According to the Respondent, the payment of 80,000 had been made to the
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Claimant’s bank account in F because he had no account in S. Since the Claimant
allegedly had no account in S, the parties had agreed to pay the salary in cash in
the amount of 60,000. According to the Respondent, the Claimant had never
objected to this.
8.2
The Respondent asserts that the Claimant had been registered as an amateur by
an oversight, but that this bears no relation to the present dispute.
8.3
With regard to the Claimant’s injury, the Respondent alleges that he only received
slight knocks and did not miss any matches prior to his departure from the
Respondent. The Respondent states that it sent the Claimant to the club
physiotherapist just as it does with all the other players.
8.4
According to the Respondent, the Claimant constantly breached the club’s good
behaviour regulations, endangered the health of his team-mates during training
and did not thank his opponents after the match.
8.5
After warning the Claimant several times, the Respondent decided to drop him
from the team. Accordingly, in September 2006 he received an airline ticket to F
(e-ticket dated 29 September 2006). According to the Respondent, the
Respondent’s sponsor and the Claimant agreed that he would return to F.
However, the Claimant appears to have remained in S.
8.6
The Respondent says it never terminated the contract but merely decided to drop
him from the team. The Respondent states that it had always intended to fulfil its
contractual obligations.
8.7
The Respondent asserts that it respected all of its obligations. It says it paid 80,000
as a signing-on fee, as well as 10,000 per month less 15% tax for non-residents. It
only withheld the salary for October 2006 because the Claimant had remained in S
even though he had been supposed to leave by 31 October 2006 at the latest,
which could incur supplementary costs for the Respondent in tax. By remaining in
S for longer than stipulated in the contract, the Claimant had exceeded the period
during which he was eligible for the tax regime for non-residents.
8.8
Furthermore, the Respondent alleges that the Claimant has still not left and uses
the apartment in question without paying rent (3,855 per month).
8.9
In view of these facts, the Respondent deems it appropriate to withhold the
amount of 10,000 for damages incurred.
8.10 Finally, the Respondent alleges that the Claimant always had the same insurance
cover both as an amateur and as a professional and that the Claimant therefore
suffered no financial loss.
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9.
The Claimant has not disputed the Respondent’s assertions and the Respondent
has also stood by its arguments.
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 20 June 2007. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2005, hereafter: Procedural Rules) are applicable to the matter at hand
(cf. art. 18 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2008) 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), and considering that the present claim was lodged on 20 June
2007, the previous version of the regulations (edition 2005; hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The members
of the Chamber carefully studied the facts outlined above as well as the entire
documentation on file.
5.
First, the Chamber turned its attention to the Claimant’s complaint lodged with
FIFA, by means of which the player implicitly claims that the club had breached
the employment contract concluded with the Respondent.
6.
In this respect, the Chamber took note that the Claimant bases his entire claim
on the fact that the Respondent had registered him as an amateur, even though
he was a professional. According to the Claimant, he had a ”fake professional
contract“ and has allegedly lost his accident insurance as a result. He alleges that
he was injured and had to cover the cost of his medical treatment for five months.
7.
However, the Chamber pointed out that the Claimant neither submitted any
documentary evidence of his medical cost nor of his injury.
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8.
The Chamber also acknowledged that the Claimant, as a consequence of the
aforesaid, seeks payment from the Respondent all his salary after tax, as he alleges
that the club did not pay any tax on his salary; a compensation for his injuries and
the emotional distress he suffered; and the sum of EUR 300,000 to 500,000 in
compensation for changing his status from professional to amateur, as well as
sanctions for the club for this action. Furthermore, the Chamber took note that
after having been asked to substantiate his claim, the Claimant requested the
Respondent to pay him the salary from October 2006 to February 2007, i.e. for five
months.
9.
On the other hand, the Chamber took into account the position of the
Respondent who had specified that a total contractual amount of 140,000 (EUR
13,256.50) was agreed for the period of the contract. According to the
Respondent, the two parties had agreed that the amount of 80,000 would be paid
as a signing-on fee and that the amount of 60,000 would be paid in instalments of
10,000 for the months of May to October 2006. According to the Respondent, the
payment of 80,000 had been made to the Claimant’s bank account in F because he
had no account in S. Since the Claimant allegedly had no account in S, the parties
had agreed to pay the salary in cash. According to the Respondent, the Claimant
had never objected to this.
10.
In this respect, the Chamber remarked that both parties appear to agree on the
contractual obligations of the Respondent towards the Claimant.
11.
With regard to the status of the Claimant, the Chamber noted that the
Respondent admits that the Claimant had been registered as an amateur by an
oversight, but that this bears no relation to the present dispute.
12.
Having that in mind, the members of the Chamber established that the fact of
having been registered as an amateur instead of having been registered as a
professional does not, in itself, constitute a breach of the employment contract.
13.
Furthermore, the Chamber stressed that the Claimant did not submit any evidence
that would prove that he indeed suffered any damage from the false registration.
14.
In this regard, the Chamber pointed out that according to art. 12 par. 3 of the
Procedural Rules any party claiming a right on the basis of an alleged fact shall
carry the burden of proof, and that, in the present matter, the Claimant was not
able to furnish any proof in order to support his allegation or to weaken the
allegations of the Respondent.
15.
With respect to the Claimant’s injury, the Chamber acknowledged that the
Respondent alleges that he only received slight knocks and did not miss any
matches prior to his departure from the Respondent. The Respondent states that it
sent the Claimant to the club physiotherapist just as it does with all the other
players. Moreover and concerning the Claimant’s insurance coverage, the
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Chamber also took note of the Respondent’s allegation that the Claimant always
had the same insurance cover both as an amateur and as a professional and that
the Claimant therefore suffered no financial loss.
16.
In view of the above, the Chamber emphasized that the Claimant, after having
received the position of the Respondent for further comments, did not oppose to
this depiction of his, the Claimant’s, medical situation.
17.
On account of the aforesaid, the Chamber concluded that the Respondent had not
breached the employment contract concluded with the Claimant by registering
him as an amateur. As a consequence, the Chamber decided that the Claimant was
not entitled to receive any financial compensation from that wrongful
registration.
18.
In continuation and with regard to the Respondent’s contractual obligations, the
Chamber pointed out that the Respondent had stated that it had always intended
to fulfil such contractual obligations, and that it had respected all of them by
paying 80,000 as a signing-on fee, as well as 10,000 per month less 15% tax for
non-residents.
19.
However, the Chamber took due note of the fact that the Respondent had
admitted to have withheld the salary for October 2006. In particular, the Chamber
acknowledged that the Respondent justified its refusal to pay the last salary to the
Claimant because the latter remained in S even though he had been supposed to
leave by 31 October 2006 at the latest. According to the Respondent, this could
incur supplementary costs for the Respondent in tax. In this respect, the Chamber
took note of the argument put forward by the Respondent that the Claimant, by
remaining in S for longer than stipulated in the contract, had exceeded the period
to which he was eligible to stay in S in line with the tax regime for non-residents.
Furthermore, the Chamber observed that the Respondent alleges that the
Claimant has still not left and is using the apartment in question without paying
rent (3,855). In view of these facts, the Respondent deems the withholding of
10,000 for damages incurred is more than adequate.
20.
In this respect, the Chamber acknowledged that the employment contract
between the Claimant and the Respondent included the obligation of the
Claimant to leave S immediately at the end of the season, by 31 October 2006 at
the latest. In this context, the Chamber also underlined that the Claimant never
contested the legitimacy or the existence of this obligation.
21.
In this regard, the Chamber remarked that the Claimant indeed appears to have
remained in S.
22.
Furthermore, the Chamber also recalled that the Respondent had requested that it
should be established that it was entitled to withhold the salary for October 2006
in order to be reimbursed the supplementary costs in the amount of 10,000
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incurred by the fact that the Claimant did not leave S at the moment of the
termination of his employment contract.
23.
With regard to this counter-claim lodged by the Respondent against the Claimant,
the Chamber wished to stress that the Claimant had not contested these further
allegations made by the Respondent, albeit having been asked to do so.
24.
On account of the above, the Chamber concluded that in this way the Claimant
renounced its right to defence and, thus, accepted the claim of the Respondent.
As a consequence, the Chamber decided that the Respondent was entitled to
receive compensation in the amount of 10,000 from the Claimant.
25.
In this regard, the Chamber was eager to emphasize that in view of the fact that it
is undisputed that the Respondent owes the Claimant the salary for October 2006
in the amount of 10,000 based on the relevant employment contract, the Claimant
is considered to have settled the amount due to the Respondent.
26.
In conclusion, the Chamber decided that the Respondent was entitled to withhold
the amount of 10,000.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, J, is rejected.
2.
The counterclaim of the Respondent/Counter-Claimant, C, is accepted. The
Claimant/Counter-Respondent, J, therefore has to pay to the Respondent/CounterClaimant, C, the amount of 10,000.
3.
The Respondent/Counter-Claimant, C, owes the Claimant/Counter-Respondent, J,
10,000.
4.
The Claimant/Counter-Respondent, J, is considered to have settled the
aforementioned amount (cf. point 3.) due to the Respondent/Counter-Claimant, C,
as established by the present decision.
Note relating to the motivated decision (legal remedy):
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According to art. 63 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
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