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 (The Netherlands), member
Carlos Soto (Chile), member
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player
P,
as Claimant
against the club
K,
as Respondent
regarding a contractual dispute between the parties
I.
Facts of the case
1.
On 20 December 2005, the player P (hereinafter: the Claimant), and the club K
(hereinafter: the Respondent), signed an employment contract (hereinafter: the
contract) valid from 20 December 2005 to 20 December 2008. Under the terms of the
contract, the Claimant’s monthly salary is fixed at EUR 15,000. Equally, according to
the contract, the Respondent was to buy the Claimant two return airline tickets per
year. Art. 9 par. 10 of the contract stipulates that if the Respondent terminates the
contract without just cause, the Claimant is entitled to receive all of his salary
payments until the expiry of the contract. Art. 13 of the contract provides that any
disputes arising from the contract concluded between the parties would have to be
submitted to the L Football Federation.
2.
On 29 March 2006, the Claimant lodged a complaint at FIFA due to the alleged fact
that the Respondent had terminated the contract without just cause and demanding
that art. 9 par. 10 of the contract be respected, i.e. that the Claimant be paid his
salary until the expiry of the contract (three years x EUR 180,000 annual salary). The
Claimant asserted that the Respondent’s original intention had been to subsequently
transfer the Claimant to the club, which had the same owners, and which explained
the particularly high salary for a player.
3.
Furthermore, the Claimant explained that between 21 December 2005 and 2 January
2006 his agent had called several times in order to request from the Respondent the
invitation letter apparently required to obtain the Claimant’s visa. In this respect, the
Claimant’s agent’s telephone records were submitted as evidence for the latter’s
attempt to call the Respondent. Finally, according to the Claimant, the Respondent
informed the Claimant’s agent by telephone on 3 January 2006 that it no longer
required the services of the Claimant.
4.
In its response, the Respondent held that the allegations concerning the Claimant’s
subsequent transfer were unfounded and irrelevant in connection with the present
case. The Respondent went on to say that the Claimant had never reported for duty
at the club. Equally, it explained that M citizens did not require an invitation in order
to come to L. In addition, the Respondent claimed that it had informed the Claimant
and his agent on a number of occasions during the signing negotiations and
subsequently by telephone that an invitation was not required in order to obtain a
visa for. Consequently, the Respondent deemed that there was no reason for the
Claimant not to have reported to the club.
5.
According to the Respondent, in January 2006, during the Commonwealth Cup, the
director of the Respondent had asked the Claimant’s agent to explain the Claimant’s
absence but had not received any response in this regard. The Respondent claimed
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that it had asked the L Football Federation and the Football Association of M to
settle the dispute on 15 February 2006. According to the Respondent, the Claimant
had breached his contract and his complaint should therefore be rejected.
6.
In its extra position, the Claimant responded that the Respondent had said that it no
longer required his services because he did not fit in with the Respondent’s values
and had not undergone any trials with it. The Claimant explained that following the
Respondent’s rejection, he had to train with his former club, however, without
receiving any payments. Equally, he stated that he and his agent had met
representatives of the Respondent on 14 January 2006, when the team was
participating in its first match of the season, but that the Respondent had apparently
turned down the services of the Claimant.
7.
Furthermore, the Claimant stressed that, in practice, an invitation letter from the
employing L club was required for citizens in order to receive the necessary visa. In
this connection, he submitted a letter of invitation sent by the Respondent to
another M player. He also added that the Respondent had not informed him of
either when or where he was to report for the beginning of the season and
submitted a letter from the president of the Football Association of M, apparently
confirming that the Claimant’s agent had informed him of the events in January 2006
and that the Respondent had not sent a letter of invitation to the Claimant and had
refused all contact. He further stated that the consulate had confirmed that citizens
needed a letter of invitation in order to obtain a visa.
8.
On 2 April and 25 May 2007, the FIFA administration asked the Football Association
of M and the L Football Federation to confirm whether the present matter was
already pending before any of their bodies. Subsequently, on 1 June 2007, the
Respondent announced that it did not consider FIFA competent to settle the case at
hand, as the present matter was already pending before the Disciplinary Committee
of the L Football Federation.
9.
Without prejudice to its defence, the Respondent reiterated that FIFA was not
competent to settle the present dispute and that the allegations concerning any
involvement of the club S had no bearing on the present case. In addition, and
supposedly in accordance with the law, the Respondent deemed that the Claimant
did not require a letter of invitation in order to obtain a visa and also stated that the
telephone conversation between the Claimant and a consulate employee should not
be taken into consideration as there was no evidence of that call.
10.
The Respondent claimed that the Claimant had been informed of the team’s
programme several times and that there was therefore no obstacle for him to report
to the Respondent on the date specified in the contract, i.e. 20 December 2005. The
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Respondent argued that it was under no obligation to organise the Claimant’s arrival
and also added that it appeared that the Claimant was now playing for the club N.
Finally, the Respondent requested that FIFA recognise that it is not competent to rule
on the matter and, failing that, it asked that the Claimant’s complaint be rejected.
11.
On 12 July 2007, the L Football Federation reported that a hearing on the present
dispute had been held before its Disciplinary Committee on 28 June 2007 and that
the Claimant had not attended even though he had been invited to do so in a letter
dated 13 June 2007. According to the record of the hearing held on 28 June 2007, the
Disciplinary Committee of the L Football Federation decided that the Claimant had
not had any just cause not to report to the Respondent, as a letter of invitation was
not required in order for citizens to obtain a visa. Furthermore, the committee noted
that the Claimant had signed a new contract with the club N on 25 February 2006,
valid until 15 December 2006. In addition, the Disciplinary Committee explained in its
decision that the contract concluded between the parties was never registered at the
league and had never entered into force as the Claimant had not appeared at the
Respondent.
12.
On 27 June 2007, the Claimant informed FIFA that he could not attend the hearing at
the L Football Federation, scheduled on 28 June 2007, since he considered, inter alia,
that the matter should be settled by FIFA.
13.
On 23 July 2007, the FIFA administration asked the L Football Federation whether its
Disciplinary Committee met the conditions set out in article 22 b) of the FIFA
Regulations for the Status and Transfer of Player (edition 2005) and informed the L
Football Federation that in the absence of a response the case would be settled by
FIFA’s Dispute Resolution Chamber.
14.
On 30 July 2007, the Claimant reiterated that he considered that FIFA was the only
competent authority to settle the dispute, as it had conducted the whole procedure,
unlike the L Football Federation, and therefore reaffirmed his position.
15.
On 18 November 2008, FIFA again asked the L Football Federation to provide it with
information pertaining to its Disciplinary Committee, in particular concerning its
composition and procedures. In a response received on 25 November 2008, the L
Football Federation informed FIFA that the director of the Respondent as well as the
Claimant and his agent had been invited to participate in the Disciplinary
Committee’s hearing on 28 June 2007 but that neither the Claimant nor his agent
had attended the said hearing.
16.
Upon another request of FIFA, asking for information and documentation in
connection with the composition and the procedures of the Disciplinary Committee
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of the L Football Federation, the latter provided FIFA with a copy of article 51 of the
statutes of the L Football Federation, containing a brief description of the functions,
the competences and the composition of the relevant disciplinary committee.
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 by the Claimant to FIFA on 29 March 2006. Consequently, the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2005; hereinafter: the 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 b) of the Regulations on the Status and Transfer of Players (edition 2008), the
Dispute Resolution Chamber would, in principle, be the competent body to deal with
the matter at stake since it concerns an employment-related dispute with an
international dimension, i.e. a litigation involving a player and a club regarding the
alleged breach of an employment contract.
3.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA to deal with the present matter due to the fact that the latter
had already been dealt with as to the substance by the Disciplinary Committee of the
L Football Federation.
4.
In this regard, the Chamber observed that the Claimant argued that the abovementioned deciding body of the L Football Federation did not constitute an
independent arbitration tribunal guaranteeing fair proceedings and equal
representation of players and clubs at national level in accordance with art. 22 b) of
the FIFA Regulations on the Status and Transfer of Players, for which reason he did
not recognise its jurisdiction to deal with the present matter and he was entitled to
refer the matter to FIFA. In particular, the Chamber noted that the Claimant had not
made an appearance before the aforementioned Disciplinary Committee but had
chosen to refer the matter to FIFA prior to the national body passing its decision. In
fact, the pertinent decision had been passed in absence of the Claimant.
5.
In this respect, the Chamber emphasised that in accordance with art. 22 b) of the
Regulations on the Status and Transfer of Players, the Dispute Resolution Chamber is
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competent to deal with a matter such as the one at hand unless an independent
arbitration tribunal, guaranteeing fair proceedings and respecting the principle of
equal representation of players and clubs, has been established at national level
within the framework of the Association and/or a collective bargaining agreement.
With regard to the standards to be imposed on an independent arbitration tribunal
guaranteeing fair proceedings, the Chamber referred to FIFA Circular no. 1010 dated
20 December 2005.
6.
In this respect, the Chamber acknowledged that, even though according to the
documentation presented by the L Football Federation it seems to appear that the
relevant national deciding body may formally be composed of an equal number of
player and club representatives, the Respondent was unable to prove that, in fact,
the Disciplinary Committee of the L Football Federation dealing with the present
matter had met the minimum procedural standards for independent arbitration
tribunals as laid down in art. 22 b) of the Regulations on the Status and Transfer of
Players and in FIFA Circular no. 1010.
7.
Furthermore, and in this regard, the members of the Chamber noted that the
Statutes of the L Football Federation which the Chamber was provided with, in
particular art. 51 of the said Statutes, were approved by the L Football Federation
after the hearing took place and the decision as to the substance of the present
matter was passed by the Disciplinary Committee of the L Football Federation.
8.
Consequently, and taking into consideration the above circumstances, the Chamber
concluded that the argument of the general legal principle of litis pendens and,
finally, the principle of res iudicata invoked by the Respondent cannot be applied to
the matter at hand.
9.
In view of all the above, the Chamber established that the Respondent’s objection to
the competence of FIFA to deal with the present matter has to be rejected and that
the Dispute Resolution Chamber is competent, on the basis of art. 22 b) of the
Regulations on the Status and Transfer of Players, to consider the present matter as
to the substance.
10.
Furthermore, the Chamber analysed which edition of the regulations should be
applicable as to the substance of the present 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 20 December 2005
and that the claim was lodged at FIFA on 29 March 2006. In view of the foregoing,
the Chamber concluded that the previous version of the FIFA Regulations for the
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Status and Transfer of Players (edition 2005; hereinafter: the Regulations) are
applicable to the case at hand as to the substance.
11.
The competence of the Chamber and the applicable regulations having been
established, the members of the Chamber entered into the substance of the matter.
The Chamber started by acknowledging the above-mentioned facts and
documentation contained in the file and took note that the Claimant and the
Respondent signed, on 20 December 2005, a three-year employment contract valid
from 20 December 2005 to 20 December 2008.
12.
First and foremost, the Chamber was keen to underline that neither the Claimant nor
the Respondent had, during the whole proceedings, questioned the fact that an
employment contract had been signed between the parties on 20 December 2005. As
a matter of fact, the Chamber noted that the relevant original employment contract,
written in R language, had been duly signed and dated by the parties and was thus
to be considered as a valid and legally binding contract.
13.
In continuation, the members of the Chamber acknowledged that each party had
claimed that the other respective party had breached the contract, invoking entirely
opposed reasons. On the one hand, the Claimant alleged that the Respondent had
not provided him with the necessary documents and information in order to join the
club in L and that the Respondent had therefore breached the contract. On the other
hand, the Respondent deemed that the Claimant had never reported for duty at the
Respondent and that, consequently, it considered that the Claimant had not
respected the aforementioned contract.
14.
In this context, the members of the Chamber outlined that as soon as an employment
contract is signed between a club and a player, rights and responsibilities ensue on
both sides without being subject to any particular condition. In this respect, the
Chamber added that, as a general rule, it is the employer’s duty and responsibility to
act accordingly in order to obtain, if necessary, a work permit or a visa for its
employee to be able to legally enter a particular country. In other words, basically,
the employer is interested in having its employee rendering his/her services as soon as
possible to it, reason for which it will act accordingly to obtain the relevant
documents.
15.
In continuation, and in view of the arguments raised by the parties during the
investigation, the Chamber underlined that the Respondent had not submitted
evidence proving that it had acted accordingly in order to assist and help the
Claimant to join the team in L. In particular, the Respondent never submitted any
documents pertaining to the programme or the whereabouts of the team, let alone
given evidence that the Claimant was provided with such documentation, although it
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had claimed to have informed the Claimant in this regard on several occasions.
Furthermore, the Chamber acknowledged the fact that the Respondent had declared
in its statement of defence that it (quote) “… was not under a contractual obligation
to organize the arrival of the Player or his meeting”.
16.
As regards the argument raised by the Respondent that the Claimant did not require
a letter of invitation in order to obtain a visa for L, the members of the Chamber
noted that both parties had provided contradictory information. On the one hand,
the Respondent had argued that according to an agreement between L and M, no
invitation was necessary in order to obtain a 90-day visa. On the other hand, the
Claimant had submitted a letter of invitation, dated 30 December 2005, sent by the
Respondent to another player.
17.
In view of the contradictory information emanating from the L Consulate in M and
the relevant governmental body in L, the Chamber deemed that it ought to focus its
attention on the overall circumstances of the present matter and, in particular, the
attitude and the conduct of the parties.
18.
In this connection, the members of the Chamber took note of the fact that, on 14
January 2006 during the Commonwealth Cup, the Claimant and his agent had
travelled to apparently meet representatives of the Respondent, when the team
played its first match of the season. Although the opinions of the Claimant and the
Respondent differ on what was actually said at the time they had met, the meeting
of the Claimant and his agent with representatives of the Respondent in January
2006 was not denied by the Respondent.
19.
In this context, the members of the Chamber concluded that, given the
aforementioned circumstances, it appears that the Claimant would not have met
with representatives of the Respondent if it was not in an attempt to join the
Respondent while it was present in, a country which did not require any visa for
nationals of M. Furthermore, the Chamber deemed it rather unlikely that the
Claimant, having signed a contract for a monthly salary particularly high for L or M,
would have subsequently decided not to join the Respondent.
20.
In view of the above, the members of the Chamber deemed that while it appears
that the Claimant had acted in good faith trying to fulfil his obligations arising from
the contract, the Respondent had not reacted sufficiently and had not proposed any
solution so that the Claimant could initiate his training and playing with the team,
even though this would have been one of the Respondent’s obligations.
Consequently, the Chamber deemed that it had to assume that soon after the
Claimant and the Respondent signed the contract, the Respondent, for some reasons
not known to the Chamber, had become uninterested in the services of the Claimant.
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21.
On account of the above, the Chamber concluded that the Respondent had no just
cause to prematurely terminate the employment relationship between the parties
and that it had therefore terminated the employment contract signed between the
parties without just cause.
22.
In this context, the members of the Chamber turned their attention to the
consequences of such an unjustified breach of contract as set out in art. 17 par. 1 of
the Regulations. On the basis of the said article, the Chamber concluded that the
Respondent is liable to pay compensation to the Claimant for breach of contract.
23.
For the assessment of the applicable amount of compensation, the Chamber first
referred to art. 17 par. 1 of the Regulations, in particular to the non-exhaustive
enumeration of the objective criteria which need to be taken into account.
24.
In continuation, the members acknowledged that the Claimant bases his claim for
compensation on art. 9 par. 10 of the contract concluded between the parties, which
states that if the Respondent terminates the contract without just cause, the
Claimant would be entitled to receive all of his salary payments until the expiry of
the contract, i.e. EUR 540,000. In this respect, the Chamber acknowledged that,
although the contract was duly signed by the parties, it had never been executed and
that consequently, any amount of compensation has to be calculated in the light of
the aforementioned fact and has to remain reasonable given the overall
circumstances of the case. To this end, the Chamber also noted that the Claimant was
able to sign, on 25 February 2006, another employment contract with a club and
that, consequently, his footballing career, at least at that stage, had not been put in
jeopardy by the non-execution of the contract concluded with the Respondent.
25.
In view of all of the above, the members of the Chamber unanimously concluded that
not the entire remaining contract value, but the amount of EUR 200,000 was to be
considered reasonable and justified as compensation for breach of contract.
26.
Consequently, the Dispute Resolution Chamber decided that the claim of the
Claimant P, is partially accepted and that the Respondent, the club K, has to pay to
the Claimant the total amount of EUR 200,000.
*****
III.
Decision of the Dispute Resolution Chamber
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1.
The claim of the Claimant, player P, is partially accepted.
2.
The Respondent K , has to pay to the Claimant P, the amount of EUR 200,000 within
30 days as from the date of notification of this decision.
3.
Any further claims lodged by the Claimant P, are rejected.
4.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee so
that the necessary disciplinary sanctions may be imposed.
5.
The Claimant P, is directed to inform the Respondent K, immediately and directly of
the account number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to article 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:
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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
Markus Kattner
Deputy Secretary General
Encl. CAS directives
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