Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 February 2010,
in the following composition:
Slim Aloulou, (Tunisia), Chairman
Philippe Piat (France), member
Takuya Yamazaki (Japan), member
Mario Gallavotti (Italy), member
Todd Durbin (USA), member
on a claim presented by the player
V,
as Claimant
against the club
FC G,
as Respondent
regarding a contractual dispute arisen between the parties
I.
Facts of the case
1.
The S player, V (hereinafter: the Claimant), and the club, FC G (hereinafter: the
Respondent), concluded an employment contract (hereinafter: the contract) valid
from 20 January 2009 until 20 November 2010.
2.
The contract provided for a monthly salary for the Claimant amounting to USD
4,500 net, payable on the 10th day of every month as well as a signing fee for the
amount of USD 4,500 net, payable on the date of the signature of the contract.
3.
Clause II.3.15. of the contract stipulates that if the Respondent delays its payments
for more than 30 days, it will have to pay to the Claimant 3 salaries, amounting to
USD 13,500, and that the Claimant will automatically be free.
4.
On 9 April 2009, the Claimant and the Respondent concluded a termination
agreement, by means of which both parties annulled the contract concluded by and
between them on 20 January 2009, with effect as from the date of signature of the
said termination agreement.
5.
On 20 May 2009, the Claimant lodged a claim against the Respondent, claiming the
total amount of USD 9,500 corresponding to his salaries from 20 January 2009 to 10
April 2009, date on which the Claimant left the Respondent, under the threat of
being deported by the Respondent to the police. In this respect, the Claimant
alleged that his work permit had not been arranged. Additionally, the Claimant
claimed compensation for breach of contract in the amount of USD 87,000, i.e. the
entire rest value of the contract as from 11 April 2009 until 20 November 2010, as
well as an indemnity of 3 monthly salaries, amounting to USD 13,500. Finally, the
Claimant asked for 5% of interest on the claimed amounts as well as disciplinary
sanctions to be imposed on the Respondent. To conclude, the Claimant asked the
Dispute Resolution Chamber to confirm the termination of his contract.
6.
In its response to the claim, the Respondent rejected the claim stating that the
employment relationship had been terminated by mutual consent and thus
submitted a termination agreement to support its allegations. Moreover, the
Respondent asserted having paid to the player all the amounts due, in particular,
USD 45,000 [sic!] in February 2009 and USD 35,000 [sic!] in March 2009.
7.
In its rejoinder, the Claimant stated that the alleged payments made by the
Respondent, i.e. USD 45,000 and USD 35,000, should be most probably a mistake
and therefore, such figures should be understood as USD 4,500 and USD 3,500
respectively, otherwise the Respondent, according to its allegations, would have
paid almost 2 years of the contract. Moreover, the Claimant asserted having
received the signing fee amounting to USD 4,500 on 27 January 2009, as well as
USD 500 on 1 April 2009 and USD 2,000 before leaving the Respondent. Therefore,
the Claimant received the total amount of USD 7,000 and not USD 8,000 nor even
the alleged USD 80,000, as stated by the Respondent.
8.
Furthermore, the Claimant denied having signed any termination agreement whilst
remarking that his alleged signature on the termination agreement submitted by
the Respondent had been falsified. According to the Claimant, the Respondent
offered him to sign a termination agreement in A language, but the Claimant did
not accept to conclude such an agreement since he was not able to understand the
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A language and no translation of the aforementioned proposal had ever been
provided to him. Finally, the Claimant explained that his salaries have neither been
paid on time nor entirely.
9.
In its final position, the Respondent confirmed its previous allegations.
10. To conclude, the Claimant informed FIFA that he concluded a stipend agreement
with the S club, FC M, valid from 10 July 2009 until 10 December 2009, which
provides for a monthly salary for the player of 7,000.
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
initially submitted to FIFA on 20 May 2009. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand
(cf. art. 21 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 2009) the Dispute Resolution Chamber shall adjudicate on
employment-related disputes between a club and a player of 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 club regarding an employmentrelated dispute between the parties.
4.
In continuation, the Chamber analysed which 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 2009) and, on the other hand, to the fact that the contract at the basis of
the present dispute was undated, yet, it was valid as from 20 January 2009. In this
regard, the Chamber equally pointed out that the claim was lodged at FIFA on 20
May 2009, thus before the aforementioned regulations entered into force on 1
October 2009. In view of the aforementioned, the Chamber referred to art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (edition 2009) and
concluded that the edition 2008 of the Regulations on the Status and Transfer of
Players (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
5.
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 started by acknowledging that, on the one hand, the parties
concluded an employment contract valid from 20 January 2009 to 20 November
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2010, and on the other hand that the parties, as alleged by the Respondent,
terminated, by mutual consent, their labour relationship on 9 April 2009.
6.
In continuation, the Chamber took due note that the Claimant vehemently
contested the validity of the termination agreement and remarked that his alleged
signature on the termination agreement submitted by the Respondent had been
falsified.
7.
In this respect, the Chamber emphasized that, as a general rule, it is not the
competent body to decide upon matters of criminal law, such as the alleged
falsification of a signature or a document, but that such affairs rather fall into the
jurisdiction of the competent national criminal authority.
8.
Yet, based on the documentation currently at its disposal, the Chamber looked at
the relevant original version of the termination agreement and compared the
Claimant’s signature on the termination agreement with the Claimant’s signature
on other documents on file, and noted that the Claimant’s signature appearing on
the termination agreement does not seem to be identical with the Claimant’s
signature on the other documentation at the Chamber’s disposal. Additionally,
after having carefully and scrupulously examined the original version of the
termination agreement as well as its copy provided by the Respondent, the
members of the Chamber noted that both documents do not appear to be identical
albeit one document is the original version of the termination agreement and the
other document is supposed to be a copy of the said termination agreement.
9.
In view of all of the above, the Chamber unanimously came to the conclusion that
the termination agreement cannot be taken into account for the present dispute.
10. In continuation, the Chamber took note that the Claimant requested allegedly
outstanding salaries based on the financial terms stipulated in the contract.
11. In this respect, the Chamber turned its attention to the financial terms stipulated in
the contract and acknowledged that according to the said contract the Claimant is
entitled to receive a monthly salary of USD 4,500 to be paid on the 10th day of every
month, plus a signing fee of USD 4,500, payable at the contract’s signature.
12. Finally, the Chamber took into consideration that the Claimant alleged having
received a signing fee of USD 4,500 as well as USD 500 and USD 2,000 as partial
payments before leaving the Respondent on 10 April 2009.
13. In view of all of the above, and taking into account the partial payments the
Claimant admitted to have received, the Chamber concluded that the Respondent
has breached the contract without just cause and should therefore be held liable to
pay to the Claimant the relevant outstanding salaries pertaining to part of the
month of February 2009, i.e. USD 3,500, the month of March 2009, i.e. USD 4,500,
and part of the month of April 2009, i.e. USD 1,500 as well as compensation for
breach of contract without just cause.
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14. In this context, the Chamber took note that the Claimant claimed compensation for
breach of contract in the amount of USD 87,000, i.e. the entire rest value of the
contract as from 11 April 2009 until 20 November 2010, as well as an indemnity of 3
monthly salaries, amounting to USD 13,500
15. In this regard, the Chamber referred to art. 17 par. 1 of the Regulations, and
emphasised that, first of all, it had to clarify as to whether the relevant employment
contract contains a provision by means of which the parties had beforehand agreed
upon an amount of compensation for breach of contract, payable by the party
responsible for such breach.
16. Thus, the Chamber took note that the clause II.3.15. of the contract stipulates that if
the Respondent delays its payments for more than 30 days, it will have to pay to the
Claimant 3 monthly salaries, amounting to a total of USD 13,500.
17. In this context, the Chamber concluded that, the relevant compensation should be
calculated based on the aforementioned provision, i.e. as agreed beforehand by the
parties.
18. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
pay the amount of USD 9,500 as outstanding salaries, plus interests at the rate of
5% per year as from the relevant due dates, and the amount of USD 13,500 as
compensation for breach of contract, in accordance with the pertinent provisions of
the contract.
19. Finally, the Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claims lodged by the Claimant are rejected.
20. To conclude, and for the sake of good order, the Chamber emphasised that the
contractual relationship between the parties to the present dispute had come to an
end.
*****
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, V, is partially accepted.
2.
The Respondent, FC G, must pay to the Claimant, V, the amount of USD 3,500, plus
interests at the rate of 5% per year as from 11 March 2009, within 30 days as from
the date of notification of this decision.
3.
The Respondent, FC G, must pay to the Claimant, V, the amount of USD 4,500, plus
interests at the rate of 5% per year as from 11 April 2009, within 30 days as from
the date of notification of this decision.
4.
The Respondent, FC G, must pay to the Claimant, V, the amount of USD 1,500, plus
interests at the rate of 5% per year as from 11 May 2009, within 30 days as from
the date of notification of this decision.
5.
If the aforementioned amounts (cf. no. 2, 3 and 4 above) are not paid within the
aforementioned time limit, the matter will be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
6.
The Respondent, FC G, must pay to the Claimant, V, the amount of USD 13,500,
within 30 days as from the date of notification of this decision.
7.
If the aforementioned amount (cf. no. 6 above) is not paid within the
aforementioned time limit, an interest rate of 5% per year as of the expiry of the
fixed time limit will apply and the matter will be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
8.
The Claimant, V, is directed to inform the Respondent, FC G, 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.
9.
The contractual relationship between the Claimant, V, and the Respondent, FC G, is
declared dissolved.
10. Any further request filed by the Claimant, V, is rejected.
*****
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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:
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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