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
O,
as Claimant
against and the club
L,
as Respondent
regarding a contractual dispute between the parties
I.
Facts of the case
1.
The player O (hereinafter: the Claimant), and the club L (hereinafter: the
Respondent), signed an employment contract on 29 August 2007, which was valid
until 31 May 2008. According to article 3 of the aforementioned employment
contract, the Claimant was entitled to receive EUR 10,000 upon receipt of the
International Transfer Certificate (ITC) and EUR 70,000 in nine equal monthly
instalments, starting from 1 September 2007. In addition, the Claimant would be
entitled to the following benefits: a furnished flat, the use of a car, two return
flight tickets for himself, his wife and his children, full medical insurance for
himself and his family as well as any additional bonuses usually received by the
other players of the team.
2.
On 4 October 2007, the Claimant, via his legal representative, lodged a claim with
FIFA against the Respondent for an alleged breach of the employment contract
concluded between the parties. According to the Claimant, the Respondent had
not provided him with the documents required to obtain the necessary visa and, as
a consequence, he had not been able to travel to start playing for the Respondent.
3.
The Respondent informed FIFA on 1 November 2007 that it wanted the Claimant
to join its team as soon as possible and that efforts were being made by the
Respondent to have the Claimant’s visa issued. In this respect, a letter dated 29
September 2007 written by the Respondent to the embassy was produced.
Furthermore, the Respondent stated that the payment of EUR 10,000 would be
settled as soon as the Claimant arrived.
4.
On 12 November 2007, the Claimant responded that he deemed it highly
improbable that the issuance of a visa would take so much time and that this did
not explain why his ITC had apparently still not been requested. As a consequence,
he reiterated his previous claim and requested that his visa and the relevant ITC be
issued. He also requested the payment of his allegedly outstanding salaries for the
months of September to November 2007, amounting to EUR 23,333, plus the initial
payment of EUR 10,000, i.e. the total amount of EUR 33,333 by the Respondent.
5.
In a letter dated 6 February 2008, the Claimant informed FIFA that he had finally
been officially invited to join the Respondent and that he had arrived on 25
November 2007, whereupon he had allegedly begun training with the club.
Equally, he informed FIFA that a car and an apartment had been placed at his
disposal and that he had eventually been paid the aforementioned EUR 10,000.
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6.
The Claimant asserted that he had then been offered a new contract by the
Respondent, which would have replaced the previous one and which would
allegedly have freed the Respondent from its financial obligations towards the
Claimant as provided for by the employment contract concluded between the
Claimant and the Respondent on 29 August 2007. Since the conditions of the new
employment contract were much less favourable for him than those of the initial
and valid contract, the Claimant had refused to sign the new contract.
7.
Furthermore, the Claimant explained that on 16 January 2008, after nearly two
months of training with the Respondent, he had allegedly received a temporary
suspension order from the Respondent, signed by the head coach, according to
which he was to be dismissed from 16 until 26 January 2008. The Claimant asserted
that this had been due to the coach not wanting him to participate in the
Respondent’s training sessions. The Claimant emphasised that he had not stopped
training throughout his entire stay, but had done so privately and separately from
the team and had hoped that the situation could be clarified and a mutual
agreement could be reached. On 29 January 2008, the Claimant allegedly received
a second suspension order until 8 February 2008 from the Respondent.
8.
The Claimant asserted that on 1 February 2008, the keys of his official car had
been requested by a representative of the Respondent and that he had been
asked to empty his apartment. He allegedly had no choice but to leave his
accommodation. He further stressed that his situation had been even more
unsettled as his ITC had still not been issued or requested from his former club’s
association during the winter registration period.
9.
In his aforementioned letter dated 6 February 2008, the Claimant admitted having
received the following payments from the Respondent:
An initial payment of EUR 10,000 as stipulated in article 3 of the employment
contract and paid in two instalments: EUR 1,000 on 20 December 2007 and
EUR 9,000 on 21 December 2007;
EUR 3,000 on 30 January 2008 (allegedly part of his September 2007 salary).
Consequently, the Claimant requested from the Respondent the payment of the
total amount of EUR 67,000, comprising of EUR 43,667 for his alleged salaries from
September 2007 until February 2008 and EUR 23,333 of compensation for the
damages suffered as a consequence of the early termination of his employment
contract and corresponding to his salaries from March until May 2008.
10.
By means of a further letter also dated 6 February 2008 and sent to the
Respondent, the Claimant unilaterally terminated the employment contract with
the club for the following reasons: non-registration at the C Football Association,
thus making him ineligible to play and excluding him from all of the Respondent’s
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matches and non-fulfilment of the Respondent’s financial obligations, in
particular, non-payment of his salaries from September 2007 to February 2008.
11.
In its response to the claim on 14 April 2008, the Respondent merely informed FIFA
that it had paid the Claimant the total amount of EUR 67,159 as follows:
EUR 990 on 20 December 2007
EUR 43,169 on 21 December 2007
EUR 23,000 on 30 January 2008
In this respect, the Respondent attached to its response copies of three payment
receipts dated 20 December 2007, 21 December 2007 and 30 January 2008 that
had apparently been signed by the Claimant.
12.
In a letter dated 15 October 2008, the Claimant refuted the Respondent’s
allegations according to which the Respondent had paid to him the amount of
EUR 67,159 and alleged that two of the three payment receipts produced by the
Respondent were unauthentic and forged as he deemed that a digit could easily
have been added afterwards. He reiterated that the only amounts he had received
to date had been those mentioned in his letter dated 6 February 2008 (i.e. EUR
13,000 in total).
13.
The two relevant, original payment receipts dated 21 December 2007 and 30
January 2008 were provided by the Respondent to FIFA on 23 October 2008 and
appeared to confirm that the Claimant had received a cash payment of EUR 67,159
from the Respondent.
14.
Consequently, FIFA asked the Claimant to provide his original payment receipts
but was informed by the Claimant that he had only been provided by the
Respondent with photocopies of the payment receipts. Therefore, he could not
submit anything else than the copies that he had at his disposal and which were
already provided to FIFA.
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 4 October 2007. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
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(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 and 2 in
connection with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2008) 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 player and a club regarding an
employment related dispute between the parties.
4.
Subsequently, the members of the Chamber analysed which edition of the
regulations 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
on the Status and Transfer of Players (edition 2008) and, on the other hand, to the
fact that the relevant contract at the basis of the present dispute was signed on 29
August 2007 and that the claim was lodged at FIFA on 4 October 2007. In view of
the foregoing, the Chamber concluded that the previous version of the
regulations, the FIFA Regulations for the Status and Transfer of Players (edition
2005, hereinafter: the Regulations) are applicable to the case at hand as to the
substance.
5.
Once its competence and the applicable Regulations were thus established, the
Dispute Resolution Chamber went on to deal with the substance of the matter.
The members of 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 an employment contract on 29 August 2007 which was
valid from 1 August 2007 until 31 May 2008.
6.
The Chamber also took due note that the Claimant had claimed to only have
received from the Respondent the total amount of EUR 13,000, paid as follows:
EUR 1,000 on 20 December 2007, EUR 9,000 on 21 December 2007 and EUR 3,000
on 30 January 2008 as confirmed by the copies of the payment receipts submitted
by the Claimant on 7 November 2008.
7.
Equally, the Chamber acknowledged that the Respondent had, in its response
dated 14 April 2008, claimed having paid to the Claimant the total amount of EUR
67,159 as follows: EUR 990 on 20 December 2007, EUR 43,169 on 21 December
2007 and EUR 23,000 on 30 January 2008 as confirmed by the copies of the
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payment receipts submitted by the Respondent on the same day and later by the
original receipts also provided by the Respondent.
8.
In this respect, the members of the Chamber held that since both parties seemed
to disagree on the exact amount of money that was actually paid by the
Respondent to the Claimant and since they had provided contradictory proof of
such payment, the core issue of the matter would be to determine, based on all
the documents received from the parties, whether the evidence submitted by one
party would overweight the other party’s evidence (cf. art. 12 par. 3 of the
Procedural Rules).
9.
First and foremost, the Chamber looked at the relevant original payment receipts
provided by the Respondent as well as the copies of the same receipts sent by both
the Respondent and the Claimant. In this regard, it acknowledged that the
payment receipts provided by the club and the player bore the same serial
numbers (i.e. nr. 3599, 3643 and 3729) and dates and had been duly signed by the
Claimant as well as the Respondent. In addition, the signatures of the Claimant on
the relevant payment receipts received from him and the Respondent appeared to
be identical. Consequently, the Chamber came to the conclusion that only the
amount figures and their spelled and handwritten equivalent indicated in the
relevant payment receipts could have been modified ex post by either of the
parties.
10.
In this context, and after having carefully and scrupulously examined and
compared the relevant payment receipts submitted by both parties, the Chamber
considered that since the spaces between the sign “X” and number five “5” of
receipt number 3643 as well as between the sign “X” and number three “3” of
receipt number 3729 were absolutely identical on both sets of payment receipts
provided by the Respondent and the Claimant, reason for which it concluded that
the first digit “2” on the relevant payment receipts could have either been added
or erased subsequently. In the same way, the members noticed that the same
observation could be made for the spelled and handwritten equivalent of the
relevant figures.
11.
In continuation, the Chamber noted that, on the copies of the payment receipts
provided by the Claimant, the shaded outlines of the receipt book on which the
relevant contents had been filled in and which were subsequently torn off were
clearly visible. Consequently, the Chamber held that this seemed to indicate that
the copies of the payment receipts the Claimant had submitted must have been
photocopied on the dates he had signed them, presumably in presence of
members of the club and even maybe at the club’s office, and that therefore it
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appears very unlikely that the Claimant could have modified the said receipts at
these or at later stages.
12.
In view of the above, the Chamber concluded that it had to assume that two of
the three original payment receipts submitted by the Respondent to FIFA appear
to have subsequently been modified by someone other than the Claimant, after
the latter had signed each one of them and after he had been provided with
photocopies of the relevant receipts. In other words, it appears credible that a “2”
was added on the relevant payment receipts.
13.
However, and pertaining to the foregoing, the Dispute Resolution Chamber was
eager to emphasise that for issues regarding falsified documents, only the relevant
penal courts are competent to pass a formal decision.
14.
Furthermore, the Chamber deemed it rather improbable that the Respondent
would have already complied with the totality of its financial obligations under
the relevant contract on 30 January 2008, whereas the contract between both
parties was due to expire only on 31 May 2008. This appears even more doubtful
as the Respondent had never, at any stage of the proceedings, asked the Claimant
to pay compensation for having unilaterally terminated his employment contract
and left the club in February 2008, almost four months before the expiry of the
contract signed by and between the parties.
15.
Finally, the members of the Chamber were also keen to emphasise that the
Respondent had not provided any substantial evidence demonstrating that it had
duly requested and received the International Transfer Certificate (ITC) from the
Claimant’s former association and that it had subsequently duly registered the
Claimant’s employment contract at the C Football Association, which indicates that
the Respondent did not seem to really be willing to register the Claimant in order
for the latter to be actually entitled to play for the Respondent.
16.
In view of all of the above, and taking into account the overall circumstances of
the present case, the Chamber concluded that the Respondent was not able to
prove that the amounts claimed had been paid to the Claimant by the
Respondent. Thus, the Dispute Resolution Chamber established that the claimed
amounts were still outstanding and that the Respondent hence breached the
contract concluded between the parties. The Chamber therefore established that
the Respondent has to pay the following amounts to the Claimant: EUR 35,888 as
outstanding salaries and EUR 31,112 as compensation for breach of contract.
17.
Consequently, the members of the Chamber decided that the claim of the
Claimant is accepted.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant O is accepted.
2.
The Respondent L has to pay to the Claimant O the amount of EUR 67,000 within
30 days as from the date of notification of this decision.
3.
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.
4.
The Claimant O is directed to inform the Respondent L 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
Jérôme Valcke
Secretary General
Encl. CAS directives
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