Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 23 February 2007,
in the following composition:
Mr Slim Aloulou (Tunisia), Chairman
Mr Philippe Diallo (France), member
Mr Essa M. Saleh al Housani (United Arab Emirates), member
Mr Michele Colucci (Italy), member
Mr Mick McGuire (England), member
on the claim presented by the player
X, XX,
Represented by A, XX,
as Claimant,
against the club
Y, YY,
as Respondent,
regarding a contractual dispute arisen between the parties.
./…
I.
Facts of the case
1.
The player X, XX (hereinafter: the Claimant), born 23 January 1982, and the club Y, YY
(hereinafter: the Respondent), entered into a contract of employment with a term from 29
August 2005 to 29 August 2009. Clause 4 of the contract of employment mentions that the
player was to receive bonus payments as set forth at Appendix 1 to the contract of
employment. At points 3 and 4 of Appendix 1, the parties agreed the following according
to the English translation of the employment contract:
"3. Football Club “Y” pays to X in cash the amount of 10.000 USD $ until November
31, 2005 and 10.000 USD $ as of January 1, 2006.
2006 – 2007 in cash the amount of 25.000 USD $
2007 – 2008 in cash the amount of 30.000 USD $.
4. In future “Y” undertakes to:
4.1 Pay the fixed salary in case of illness or injury, the monthly salary of 3.000 USD $
until December 31, 2005 and as of January 1, 2006 the amount of 4.000 USD $.
2006 – 2007 the salary of 5.000 USD $
2007 – 2008 the salary of 6.000 USD $”.
2.
On 21 March 2006, the Claimant filed a claim against the Respondent with the following
applications:
a) For payment of outstanding salary for the month of August 2005 in the amount of
USD 3,000,
b) For payment of outstanding salary for the month of September 2005 in the amount of
USD 3,000,
c) For payment of outstanding salary for the month of October 2005 in the amount of USD
3,000,
d) For payment of outstanding salary for the month of December 2005 in the amount of
USD 3,000,
e) For an outstanding payment in the amount of USD 10,000, due on 31 November 2005,
f) For an outstanding payment in the amount of USD 10,000, due on 1 January 2006,
g) For the contract concluded with Y to be declared dissolved at the expense of the club.
The Claimant therefore claimed a total amount of USD 32,000.
3.
In justifying his claim, the Claimant submitted that the Respondent had informed him in
December 2005 that it was no longer interested in his services. The Claimant then allegedly
sent a letter to both the Respondent and the Football Federation of YY on 3 January 2006,
in order to safeguard his rights. These letters apparently went unanswered. The Claimant
also claimed that the then Football Association of XX had contacted the Football
Federation of YY on 2 February 2006 in an attempt to bring about an amicable solution in
the aforementioned matter. Apparently this letter went unanswered, too.
4.
On 7 April 2006, the Football Federation of YY submitted the answer of its member club.
The Football Federation of YY also confirmed having received a letter from the Claimant
and that it had been answered by the member club. As the Claimant had left no contact
details, however, it had not been possible to forward the Respondent’s answer. It denied
receiving a letter dated 2 February 2006, as had been claimed by the then Football
Association of XX.
Player X, XX / Club Y, YY
2
5.
The Respondent stated that the Claimant had no longer appeared for work from 9 January
2006, and with the exception of the letter forwarded by the Football Federation of YY, in
which he asked to be released and for the outstanding monies to be paid, had no longer
been in contact. The Respondent had allegedly replied to this letter, but according to the
Football Federation of YY its reply could not be sent to the Claimant because the Claimant
had left no contact address. The Respondent had informed the Football Federation of YY
that the Claimant had not reported for the first training session and was thus in breach of
his contract of employment and employment law of YY. It had also stated that the
Claimant’s salaries and other monies owed could be collected from the club. With regard
to the airline tickets, the Respondent stressed that these were normally refunded on the
player’s return on presentation of the tickets. The Respondent had already informed the
professional football league (Z) of YY about the entire matter. In addition, the Respondent
had already disciplined the Claimant for breach of contract, having decided on 13 January
2006 to deny the Claimant all bonus payments for the year 2005. Further, on 1 February
2006, it had decided to apply to the Z for the Claimant to be suspended for breach of
contract. Consequently, the Respondent denied to owe the Claimant any money with
effect from 9 January 2006.
6.
On 10 April 2006, FIFA requested the Respondent to submit a detailed response to the
Claimant’s application to be released with immediate effect.
7.
On 14 April 2006, the Respondent stated that it would release the Claimant immediately if
he withdrew his claim.
8.
The Claimant submitted his replication on 26 April 2006. He stated that he was sticking to
his claim because the club had not paid him the contractually agreed salaries to 31
December 2005. The sums agreed in the appendix had not been transferred either. He
alleged to have written to the club and the Football Federation of YY on 6 January 2006,
but had not received a reply. Before the holidays he had been told that he did not need to
return to the club on 9 January 2006 because he was no longer required in the second half
of the season. Moreover, the Claimant alleged having been offered USD 3,000 should he
agree to waive his contractual rights up to and including 31 December 2006, an offer he
had declined.
9.
The Claimant added that all players had received tickets for flights home apart from the
ones in whom the club was no longer interested; he had been in the latter group. He had
not received the salary owing to him for the months of September to December 2005 of
USD 3,000/month, a total of USD 12,000. In addition to that, the Claimant again pointed
out that he had not received the payments set forth in the appendix of USD 10,000 that
were due on 30 November 2005 and 1 January 2006. The club therefore owed him a total
of USD 32,000. Pursuant to the contract the amounts were to be transferred to his bank
account. He did not wish to return to YY, where he feared for his life.
10.
By letter dated 9 June 2006, the Respondent informed FIFA that it would agree to consider
the contractual relationship with the Claimant dissolved and issue an International
Transfer Certificate, if necessary, so as not to stand in the way of the Claimant’s career. Any
Player X, XX / Club Y, YY
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such release, however, was dependent upon the Claimant withdrawing all his claims on
the Respondent. Otherwise, the Respondent would apply for the Claimant to be
suspended for breach of contract.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Chamber analysed whether it was competent to deal with the matter at
stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (DRC).
The present matter was submitted to FIFA on 21 March 2006. As a consequence, the
Chamber concluded that the revised Rules Governing Procedures (edition 2005) on matters
pending before the decision-making bodies of FIFA are applicable on the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the above-mentioned
Rules states that the Dispute Resolution Chamber shall examine its jurisdiction in the light
of articles 22 to 24 of the current version of the Regulations for the Status and Transfer of
Players (edition 2005). In accordance with art. 24 par. 1 in connection with art. 22 (d) of the
aforementioned Regulations, 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 from XX and a club from YY regarding contractual
disputes in connection with an employment contract.
4.
Subsequently, the members of the Chamber analyzed which edition of the Regulations for
the Status and Transfer of Players 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 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 in August
2005 and the claim lodged at FIFA on 21 March 2006. In view of the aforementioned, the
Chamber concluded that the current 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.
In continuation, and entering into the substance of the matter, the members started by
acknowledging the above-mentioned facts as well as all the further documentation
contained in the file.
6.
To that regard, first of all, the members of the Chamber acknowledged that the Claimant
and the Respondent signed an employment contract that was due to run until 29 August
2009.
7.
As a next step, the members of the Chamber acknowledged that, on the one hand, the
Claimant alleged having been told by the Respondent in December 2005 to not join the
Respondent’s team anymore as from the beginning of the year 2006 and that, at that time,
the latter was already behind schedule in paying him different monies in the total amount
Player X, XX / Club Y, YY
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of USD 32,000, whereas the Respondent alleged that the player stopped rendering his
services to the Respondent with effect as from 9 January 2006 by his own will and, in
particular, by forfeiting with such behaviour his entitlements to any bonus payments for
the year 2005 according to a decision rendered by the Respondent at the beginning of the
year 2006.
8.
Moreover, and referring to the allegedly outstanding salary payments claimed by the
Claimant, the Chamber noted that the Respondent alleged that the Claimant could have
collected the monies owed to him or claimed in front of FIFA at the Respondent’s desk,
which is the reason why there could be no discussion about any delay in payments.
9.
With respect to the claimed outstanding salaries, the Chamber also acknowledged that the
Claimant asserted that the Respondent, in total, did not pay him his salaries for four
months, i.e. originally, for the months of August 2005 to October 2005 and December
2005, respectively, and, later on, for the months of September to December 2005, stating
that he was entitled to a monthly salary of USD 3,000.
10.
To that regard, the members of the Chamber took into consideration that the Respondent
never contested the sum of allegedly outstanding salaries in the total amount of USD
12,000 (i.e. 4 x USD 3,000) and, in particular, pointed out that the Respondent never
presented documents confirming that the said wages had been paid to the Claimant. In
other words, the Chamber concluded that the Respondent was behind schedule in paying
the Claimant salaries for four months in the total amount of USD 12,000. Thereto, the
Chamber deemed it also important to underline that the Respondent’s argument that the
Claimant could have collected any money due to him at the Respondent’s desk cannot be
considered, as salary payments are debts to be discharged at the creditor’s domicile, in casu
at the Claimant’s one, unless otherwise stipulated between debtor and creditor. The
Chamber underlined that the employment contract concluded between the Claimant and
the Respondent does not foresee any differing provision regarding this general principle of
payment arrangements.
11.
With regard to the claimed outstanding instalment payments of a total of USD 20,000, the
Chamber analysed the financial aspects provided for in the relevant employment contract
or its pertinent Appendix 1, and acknowledged that the Respondent is bound by point 3 of
Appendix 1 of the employment contract concluded between the parties in dispute to pay
the Claimant instalments of USD 10,000 by no later than 31 November 2005 (recte: 30
November 2005) and a further instalment of USD 10,000 as of 1 January 2006, respectively.
12.
In this context, the Chamber also considered that the Respondent never presented
documents confirming that the relevant instalment payments had been paid to the
Claimant.
13.
In addition to that, the Chamber acknowledged that, doubtlessly, the Claimant did not
render his services to the Claimant after having left the Respondent at the end of the year
2005. In this respect, the members of the Chamber acknowledged that the Claimant stated
having been asked by the Respondent to not return to the latter at the beginning of the
year 2006, circumstance that was contested by the Respondent. According to the latter, the
Claimant did not resume his duties by his own will.
Player X, XX / Club Y, YY
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14.
In this respect, and by referring to its considerations mentioned under II., points 9 to 11
above, the Chamber reiterated that the Respondent was already behind schedule with the
payment of the Claimant’s remunerations for several months at the Claimant’s departure
from YY.
15.
Thereto, the Chamber emphasised that the persistent failure of the Respondent to pay the
Claimant his salaries since autumn 2005 without just cause is generally to be considered as
a breach of an employment contract. The Respondent did not have any reason justifying
the non-payment of the salaries for a duration of several months, or, at least, did not
provide for any reasons which might have justified not to pay the salaries to the Claimant.
16.
In continuation, the members of the Chamber deemed it important to highlight that the
decision taken by the Respondent at the beginning of the year 2006, by means of which its
management disciplined the Claimant for his absence as from 9 January 2006 by denying
him all bonus payments for the year 2005, cannot be backed since, as mentioned before, it
remained uncontested that the Claimant rendered his services to the Respondent until the
end of the year 2005. As a consequence, the members unanimously decided that the
Claimant was entitled to receive all monies due to him on the basis of the relevant
employment contract fallen due until his departure from YY, i.e. until the end of the year
2005.
17.
As a result of the above, the Chamber stated that the behaviour of the Respondent, i.e. the
non-payment of the Claimant’s monies in the sense of the relevant employment contract,
must be considered as a breach of contract without just cause.
18.
Furthermore, the Chamber particularly highlighted that the Claimant was entitled to leave
the Respondent at the end of the year 2005 even without the Respondent’s authorisation
as the latter persistently failed to carry out its contractual financial obligations fallen due
until the end of the year 2005.
19.
In consequence of all of the above, and in application of art. 17 of the Regulations, which
foresees that any party in breach of contract without just cause shall pay compensation to
the other party, the members went on to deliberate whether the Respondent is
accountable for outstanding payments and compensation towards the Claimant.
20.
As far as the responsibility of the Respondent regarding outstanding salary payments is
concerned, the members reiterated that the Respondent has to pay the Claimant
outstanding salaries in the total amount of USD 12,000 (4 x USD 3,000/month).
21.
As a next step, the Chamber noted that the Claimant furthermore claimed outstanding
payments of USD 10,000 fallen due on 31 November 2005 (recte: 30 November 2005) and
USD 10,000 fallen due as from 1 January 2006.
22.
Taking into account the due dates of these two instalments in the amount of USD 10,000
each, the members of the Dispute Resolution Chamber reiterated that the player was at
the club’s disposal until the end of the year 2005 and, thus, entitled to receive all kind of
payments due to him until the end of the year 2005 according to the relevant employment
contract. In other words, the Chamber concluded that only the first instalment payment
Player X, XX / Club Y, YY
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claimed by the Claimant must be considered as an outstanding debt, namely the
instalment of USD 10,000 fallen due on 31 November 2005 (recte: 30 November 2005). The
second instalment claimed by the Claimant, i.e. the amount of USD 10,000 payable as of 1
January 2006, however, became due after having the Claimant left the Respondent.
Conseqeuntly, so the Chamber in an unanimous decision, the second instalement payment
claimed by the Claimant was not outstanding at the moment of the Claimant’s departure.
Therefore, the Chamber decided that the Respondent was only behind schedule with one
instalment payment in the amount of USD 10,000 and not, as alleged by the Claimant, with
two in the total amount of USD 20,000.
23.
In sum, the Chamber decided that the Respondent has to pay the Claimant outstanding
monies in the total amount of USD 22,000, i.e. USD 12,000 referring to outstanding salary
payments and USD 10,000 referring to the outstanding instalment payment fallen due on
31 November 2005 (recte: 30 November 2005).
24.
As far as compensation for breach of contract is concerned, after long deliberations, the
deciding body deemed it appropriate to compensate the Claimant with the amount of USD
10,000, representing the instalment payment which became due as of 1 January 2006 in
the sense of Appendix 1 of the employment contract signed by the parties involved.
25.
In conclusion, the Dispute Resolution Chamber decided that the Respondent has to pay to
the Claimant the amount of USD 12,000 for outstanding salaries plus USD 10,000
representing the outstanding instalment payment fallen due on 31 November 2005 (recte:
30 November 2005) plus USD 10,000 as compensation for breach of contract without just
cause. In total, the Respondent has to pay the Claimant the amount of USD 32,000.
***
Player X, XX / Club Y, YY
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III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, X, is accepted.
2.
The Respondent, Y, has to pay to the Claimant, X, the amount of USD 32,000.
3.
The amount due to the Claimant has to be paid by the Respondent within 30 days as
from the date of notification of this decision.
4.
If the aforementioned amount is not paid within the aforementioned deadline, an
interest rate of 5% per annum shall apply and the present matter will be submitted to
the FIFA’s Disciplinary Committee, so that the necessary disciplinary sanctions may be
imposed.
5.
The Claimant is directed to inform the Respondent immediately of the account number
to which the remittance is to be made and to notify the Dispute Resolution Chamber
of every payment received.
6.
According to art. 61 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 21 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
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
On behalf of the
Dispute Resolution Chamber:
Markus Kattner
Acting General Secretary
Encl. CAS directives
Player X, XX / Club Y, YY
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