Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 4 February 2005,
in the following composition:
Slim Aloulou (Tunisia), chairman
Mario Gallavotti (Italy), member
Maurice Watkins (England), member
Michele Colucci (Italy), member
Philippe Piat (France), member
on the claim presented by
A
as Claimant
against
B
as Respondent
regarding a contractual dispute
Facts of the case
On 24 January 2004, C and B agreed on the loan of A’s federative rights and, on 1
February 2004, A and B signed an employment contract valid until 30 June 2004.
According to the relevant employment contract, A was entitled to receive a monthly
salary of EUR 3,600, match bonuses and other supplementary allowances in the total
amount of EUR 650, per month.
Notwithstanding the above and despite the fact that A has remained in D, at B’s
disposal, until April 2004, A asserts that B has never complied with its contractual
obligations towards him. In fact, A considers that B as simply abandoned him.
In light of the above, A is presently claiming from B, all the amounts that he was
entitled to receive during the entire period of their employment contract, as
follows:
A - 5 months of Salaries (EUR 18,000);
B - Match Bonuses (the amount was not specified, particularly since A did not play
any match for B);
C - 5 monthly allowances (EUR 3250).
Moreover, A is also requesting the Chamber to:
A - Condemn B to pay to him the amount of EUR 20,000, as compensation for
professional and moral damages;
B - Impose the necessary disciplinary sanctions on B;
C - Grant him an amount of EUR 5,000 in order to cover his legal expenses;
D - Interests at the rate applicable in Switzerland over the amounts due.
On the other hand, B requests the Chamber to pronounce itself not competent to
decide upon the present matter, since it considers the present dispute to be a
matter “…of bad treatment and slavery of human beings...".
However, in case the Chamber acknowledges its competence over the present
matter, B defends that A did not gather the necessary physical, technical or mental
conditions which are necessary in order to play football.
Moreover, B defends that A was not able to sign a valid employment contract under
D Law. In this regard, B maintains that A’s administrative file did not allow him to
be registered or to play for it, but failed to specify the administrative reasons which,
according to it, prevented A from signing a valid employment contract.
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In this context, B understands that the claimed contract has never entered into force
and consequently defends that it should be disregarded. In fact, B is of the opinion
that it does not owe any amounts to A, particularly since it has never had any
contractual obligations towards him.
In conclusion, B asks the Chamber to reject A’s claim in its entirety.
Notwithstanding the above, B underlines that it has provided A with free
accommodation and food for a while, whilst his agents were trying to solve his
administrative problems. Moreover, despite A’s refusal, B authorized him to train
with its B team, which clearly shows that it did not abandon him.
Finally, B underlines that the players’ agents, E and F, the company G and C were
the only responsible for the eventual damages suffered by A, since they were
completely aware of his personal situation and consequently, should be the ones to
be condemned to pay an eventual compensation which the Chamber may award to
A.
In this respect, B is requesting the Chamber to investigate the degree of
responsibility of the aforementioned players’ agents, company G and C in the
present matter and moreover, in case it is condemned to pay any compensation to
A, to declare C liable to pay to it an amount of EUR 15,000, which allegedly
corresponds to the amount contractually agreed with C in case A would
demonstrate to be physically inapt to play football.
Finally, B is requesting the Chamber to:
A - Condemn A to pay to it an amount of EUR 5,000, as compensation for moral
damages;
B - Condemn A to pay to it an amount of EUR 5,000, in order to cover its legal
expenses.
In response, A defends that its contract with B is valid and binding for both parties
and underlines the fact that B should have taken all the necessary measures to
prevent the present situation before signing it.
In this context, the player draws the attention of the Chamber to Art. 30 of the FIFA
Regulations for the Status and Transfer of Players, which stipulates that “the validity
of…an employment contract between a player and a club cannot be made
conditional upon the positive results of a medical examination” and that “the
player’s prospective new club shall be required to make any necessary
investigations, studies, tests and / or medical examination or to take any
appropriate action before concluding the contract, otherwise it will be liable to
pay… the amount of the salary due.”
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In conclusion, A considers the reasons invoked by B as non-sustainable and
consequently requests the Chamber to accept his claim in its entirety.
Considerations of the Dispute Resolution Chamber
The Dispute Resolution Chamber shall review disputes coming under its jurisdiction
pursuant to Art. 42 of the FIFA Regulations for the Status and Transfer of Players, at
the request of one of the parties to the dispute.
According to Art. 42, par. 1 lit. (b) of the FIFA Regulations for the Status and
Transfer of Players, the triggering elements of the dispute (i.e. whether a contract
was breached, with or without just cause, or sporting just cause), will be decided by
the Dispute Resolution Chamber.
If an employment contract is breached by a party, the Dispute Resolution Chamber
is responsible to verify whether a party is accountable for compensation and
outstanding payments.
Also, the Dispute Resolution Chamber will establish the amount of compensation to
be paid and decide whether sports sanctions must be imposed (cf. Art. 42, par. 1, b,
ii and iii in connection with art. 22 and 23 of the aforementioned Regulations).
As a consequence, the Dispute Resolution Chamber is the competent body to decide
on the present litigation concerning the alleged breach of contract between the
Claimant and the Respondent.
The members of the Dispute Resolution Chamber were summoned to pass a decision
on this matter by the Chairman pursuant to Art. 1 point 6) of the Rules Governing
the Practice and Procedures of the Dispute Resolution Chamber.
Subsequently, and entering into the substance of the matter, the members of the
Chamber started by acknowledging that, as an outcome of B’s non-compliance with
the contract signed with A on 1 February 2004, the latter filed a claim against B
regarding the payment of all the amounts that he was entitled to receive during the
entire period of their contract in the total amount of USD 21,250, as well as
compensation for damages, interests and legal expenses.
On the other hand, the members of the Chamber also took into consideration the
position of B, according to which, the relevant contract signed with A should not be
considered valid, since A did not gather the necessary physical, technical or mental
conditions necessary in order to play football nor his administrative file allowed him
to be registered and play for it.
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After analysing all the documentation provided to the FIFA Administration, the
members of the Chamber confirmed that the relevant employment contract was
duly signed by B.
In this respect, the Chamber underlined the content of Art. 30 of the FIFA
Regulations for the Status and Transfer of Players, which stipulates that “the
player’s prospective new club shall be required to make any necessary
investigations, studies, tests and / or medical examination or to take any
appropriate action before concluding the contract, otherwise it will be liable to
pay…the amount of the salary due.”
As a consequence, the Chamber rejected the arguments presented by B and
considered the contract valid and binding for both parties.
Moreover, the members of the Chamber reached the conclusion that, despite the
club’s position, which prevented A from fulfilling his employment contract, the
latter did all in his power to comply with it.
In fact, the Chamber concluded that B is the only responsible for the non-fulfilment
of the relevant employment contract, having unilaterally breached it without just
cause.
In light of all the above, the members of the Chamber decided to partially accept
the claim filed by A and to entirely reject the counter claim filed by B in the present
matter.
Therefore, the Chamber decided that, since A was contractually entitled to receive a
monthly salary of EUR 3,600 and a monthly supplementary allowance of EUR 650,
he is entitled to receive the total amount of EUR 21.250 from B, corresponding to
EUR 12,750 for the months that he was at the club’s disposal and EUR 8,500 as
compensation for B’s breach of contract.
Furthermore, in accordance with its well-established jurisprudence, the Chamber
rejected A’s claim concerning the match bonuses, since the latter did not participate
in any match for B.
Finally, in view of the present matter’s circumstances, the evidence carried to the
file and its well-established jurisprudence, the Dispute Resolution Chamber decided
to reject all further claims filed by A.
Decision of the Dispute Resolution Chamber
1. The claim of A is partially accepted.
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2. The Respondent, B shall pay the amount of EUR 21,250 to the Claimant, A, within
30 days of notification of the present decision
3. If the Respondent fails to comply with the above-mentioned deadline, an interest
rate of 5% per year will apply and the case will immediately be presented to the
FIFA Disciplinary Committee.
4. All further claims filed by the parties are rejected.
5. According to art. 60 par. 1 of the FIFA Statutes, this decision may be appealed
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 10 days of receiving notification of this decision
and has to contain all elements in accordance with point 2 of the directives issued
by the CAS, copy of which we enclose hereto. Within another 10 days following
the expiry of the time limit for the filing of the statement of appeal, the
appellant shall file with the CAS a brief stating the facts and legal arguments
giving rise to the appeal (cf. point 4 of the directives). The full address and
contact numbers of the CAS are the following:
Avenue de Beaumont 2
1012 Lausanne
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:
Urs Linsi
General Secretary
Enclosed: CAS directives
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