Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 23 February 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Michele Colucci (Italy), Member
Mick McGuire (England), Member
Philippe Diallo (France), Member
Essa M. Saleh Al Housani (United Arab Emirates), Member
on the claim presented by the player
X, XX,
represented by Ms…, attorney-at-law
as “Claimant / Counter-Respondent”
against the club,
Y, YY,
as “Respondent / Counter-Claimant”
regarding a contractual dispute arisen between the parties involved.
I.
Facts of the case
1.
On 1 February 2005, the XXian player X (hereinafter: the Claimant) and the YY
club Y FC (hereinafter: the Respondent) signed an employment contract with a
term until the end of the YY Football League season in 2005 or the successful
completion of the club's fixture list. According to an official confirmation of the
Football Association of YY, the national league season in YY ended on
21 September 2005. The Football Association of YY added that there was a cup
competition in YY (COPA YY) that took place from 14 May 2005 to
19 November 2005.
2.
Pursuant to the employment contract, the Claimant was entitled to receive the
sum of UU 375,000,000 over the whole contract term, 25% of which was to be
paid as a down payment in advance and the rest monthly until the contract expiry
date. No further payment details were agreed in the relevant contract.
3.
On 28 April 2005, the Claimant filed an official complaint with FIFA against the
Respondent. According to the Claimant, the Respondent had terminated the
employment contract on 9 March 2005, but had not released him, as it had not
given him official written notice of the termination. In addition, the Respondent
had allegedly failed to pay the agreed salary for the period 1 February 2005 to 9
March 2005.
4.
On 4 July 2005, FIFA received a response from the Respondent, but it had not been
translated into one of the four official FIFA languages. The Respondent was
therefore requested to send FIFA a translation of its reply together with the
relevant documents, but failed to respond to these requests.
5.
The Claimant was asked by FIFA to quantify his claim. Thereupon, the Claimant
informed FIFA that he is claiming the outstanding salary for February to 9 March
2005 and the residual value of the contract, i.e. a total of UU 375,000,000 (the
player converted this amount to USD 40,000 in his claim). In addition, the Claimant
alleged that the return flight to XX had cost him USD 1,250, as well as the flight
from XX to YY (i.e. again USD 1,250), which he had paid for himself and which the
Respondent should have refunded. Finally, the Claimant mentioned that the
Respondent had yet to refund him USD 120.80 for incurred hotel expenses. The
Claimant put his outstanding claim at USD 42,620.80.
6.
The Respondent initially failed to respond to the Claimant’s quantified claim as
well as to two FIFA invitations to provide its position (on 21 November 2005 and 5
January 2006).
Player X, XX / Club Y, YY
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7.
By correspondence dated 31 May 2006, the Respondent informed FIFA that the
Claimant had committed disciplinary and criminal offences against the
Respondent as a result of which it had attempted to find him with the aid of the
competent YY immigration authorities and the police. The Respondent mentioned
the following misconduct by the Claimant:
-
leaving the Respondent without permission on 15 March 2005;
disciplinary lapses during team training sessions;
working as a model without the consent of the Respondent.
8.
In its response, the Respondent added that it had reported the Claimant’s
undisciplined conduct, in particular his leaving the Respondent without permission
on 15 March 2005, to the relevant bodies of the Football Association of YY. In
support of its statement, the Respondent submitted a letter dated 9 April 2005
that it addressed to the president of the disciplinary department of the Football
Association of YY and the director of the Players' Status and Transfer Department.
The Respondent also submitted a letter dated 21 April 2005 that it sent to the
Claimant and in which the Respondent issued the player his first warning and
instructed him to start meeting his contractual obligations again within one week.
9.
Moreover, the Respondent added that it had paid the Claimant the amount of UU
93,750,000 (corresponds to 25% of UU 375,000,000) on 2 February 2005, i.e. one
day after the employment contract was signed. In this respect, the Respondent
submitted a copy of the bank payment receipt.
10.
Furthermore, the Respondent stated that it had paid the Claimant his first
monthly salary in the amount of UU 25,568,000.00 on 14 March 2005. To this end,
it provided FIFA with a copy of the payment made containing the Claimant’s
signature.
11.
The Respondent also claimed that the Claimant had played just two matches in
the 2005 season and that it had therefore paid him too much compared with
the services he rendered. The Respondent puts its damage at UU 119,318,000
(corresponds to the amounts paid by the Respondent of UU 93,750,000 and
UU 25,568,000), which it is demanding back from the Claimant as a
counterclaim.
12.
In his final petition, the Claimant acknowledges receiving the sum of UU
93,750,000 on 4 February 2005 and the sum of UU 25,568,000 on 14 March 2005
from the Respondent.
Player X, XX / Club Y, YY
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13.
However, the Claimant rejected the Respondent’s claims that he had committed
any disciplinary and/or criminal offences. In this respect, he added that he had
never been fined by the Respondent. He also pointed out that he had left YY
without difficulty and returned on 7 December 2005. In order to support his
statement, the Claimant remitted a copy of his passport to the file. According to
the Claimant, the entry and departure of the YY boarder would not have been
possible had he really been sought by the police.
14.
The Claimant reiterated that he, like other XXian players, had not left the
Respondent, but that had been sent home by the latter.
15.
Finally, the Claimant made an application for the Respondent to pay him ten
monthly salaries of UU 25,568,000, in total UU 255,680,000, and airline tickets
for him and his wife on the route XX/YY/XX in the amount of approx. USD
2,500 each.
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. The present matter was submitted to FIFA on 28 April 2005,
as a consequence the Chamber concluded that previous Procedural Rules (edition
2001) on matter 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. 42 par. 1 lit. (b) (i) of the FIFA
Regulations for the Status and Transfer of Players (edition 2001) establishes that
the triggering elements of the employment-related 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.
3.
If an employment contract is breached by a party, the Dispute Resolution Chamber
is also responsible to verify whether a party is accountable for outstanding
payments and/or compensation.
4.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving an YY club and a XXian player
regarding a dispute arisen between the parties in connection with an employment
contract.
Player X, XX / Club Y, YY
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5.
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 on 1 February 2005 and the claim was
lodged at FIFA on 28 April 2005. In view of the aforementioned, the Chamber
concluded that the former FIFA Regulations for the Status and Transfer of Players
(edition 2001; hereafter; the Regulations) are applicable to the case at hand as to
the substance.
6.
Entering into the substance of the matter the members of the Chamber
acknowledged the documentation contained in the file, and in view of the
circumstances of the matter at stake, focused its considerations on the question
whether an unjustified breach of the employment contract signed between the
Claimant and the Respondent occurred and, in the affirmative, which party is
responsible for such breach of contract and to verify and decide about the
consequences for the possible breach of the employment contract.
7.
In this respect, the Chamber started its deliberations by acknowledging that the
Claimant and the Respondent signed on 1 February 2005 an employment contract
which was designated to be valid until the end of the football season in YY.
According to the information received from the Football Association of YY, its
national football league lasts until 21 September 2005 and its cup competition
until 19 November 2005 respectively.
8.
As regards the contents of the employment contract, the Chamber observed that
the Claimant was entitled to receive, for the entire duration of the contractual
relationship, the amount of UU 375,000,000 of which 25 %, i.e. 93,750,000, was to
be paid as a sign-on fee in advance and the remaining amount thereof was
payable on a monthly basis until the expiration of the employment contract.
9.
The members of the Chamber then took note that while the Claimant accuses the
Respondent of having terminated the employment contract on 9 March 2005
without just cause and without providing him with a written notice of termination
of the contract and also having failed to pay him his salaries by then, the
Respondent, on the other hand, maintains having duly paid the Claimant his
remuneration, i.e. advanced payment and the first salary, until the Claimant’s
unwarranted and unauthorized departure.
Player X, XX / Club Y, YY
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10.
Moreover, the deciding body turned to the counterclaim lodged by the
Respondent. The members of the Chamber noted that the Respondent defends
that the Claimant, although it duly paid him his remuneration as agreed in the
employment contract the parties signed, left it without authorisation. As a
consequence, the Respondent is claiming from the Claimant the reimbursement of
the amounts paid to the Claimant totalling to UU 119,318,000, i.e. UU 93,750,000
as advanced payment and UU 25,568,000 as first monthly salary.
11.
Furthermore, the Chamber noted that, in support of its counterclaim, the
Respondent explains that it reported the Claimant’s undisciplined conduct to the
relevant bodies of the disciplinary department of the Football Association of YY.
Moreover, in order to corroborate its statement, the Respondent submitted a copy
of a letter dated 21 April 2005 that it addressed to the Claimant in order to
instruct him to start meeting his contractual obligations.
12.
In this regard, the Chamber emphasized the fact that, throughout the present
procedure, the Claimant has contradicted himself regarding his outstanding
salaries. In particular, contrary to his initial claim, in which he claimed having not
received his remuneration since the beginning of the contractual relationship, in
his further statements, after the Respondent having provided FIFA with copies of
the relevant payments, the Claimant has confirmed having received the advanced
payment as well as his first monthly salary. From the Chamber’s point of view, such
stance does not speak in favour of the Claimant’s good faith.
13.
Subsequently, the deciding body considered the Claimant’s allegations that the
Respondent had terminated the employment contract on 9 March 2007 without
just cause.
14.
In this respect, the Chamber considered that the Claimant did not present any
evidence that the Respondent unilaterally terminated the employment contract on
9 March 2005. Contrary to the Claimant’s allegations, the Chamber observed that
the Respondent confirmed having never terminated the employment contract but
rather informed the Football Association of YY about the allegedly unwarranted
departure of the Claimant.
15.
The members of the Chamber then stated that in accordance with the legal
principle of the burden of proof, which is a fundamental part of every legal
system, a party asserting a fact has the obligation to prove the same.
16.
In accordance with the above-mentioned principle, the Claimant has the burden of
proof regarding the unilateral termination of the employment contract by the
Respondent. However, the Respondent never remitted any convincing written
evidence to the file regarding the early termination.
Player X, XX / Club Y, YY
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17.
Though, according to the statements of the parties involved as well as on the basis
of the documents contained in the file, it is established that the Claimant did no
longer attend the trainings and or matches of the Respondent as from mid-March
on.
18.
Taking into account the above, the Chamber concluded that the Respondent had
duly complied with the financial terms of the employment contract towards the
Claimant until the latter’s departure. As a consequence, when the Claimant left,
no salaries remained unpaid to him.
19.
In the light of the above, the Dispute Resolution Chamber concluded that the
Claimant has breached his employment contract with the Respondent without just
cause.
20.
In this context, the Chamber noted that the Respondent, by means of its
counterclaim, claims the refund of the amounts it paid to the Claimant, i.e. UU
93,750,000 as advanced payment and UU 25,568,000 as the first monthly salary.
21.
In this respect, the members of the Chamber explained that, as established above,
the Claimant left the Respondent in March 2005. Consequently, the Claimant
appears to have been rendering his services to the Respondent in the month of
February and therefore is entitled to keep the first monthly salary he received
from the Respondent.
22.
On the other hand, as regards the advanced payment the Claimant received from
the Respondent in the amount of UU 93,750,000, and which the Respondent
claims back, the deciding body decided that the Claimant has to refund this
unduly received amount to the Respondent. Moreover, the Chamber explained
that, in accordance with its well-established jurisprudence, the refund of the
advances payment has to be made on a pro rata temporis basis, while thereby
considering the period of time the Claimant rendered his services to the
Respondent compared to the whole duration of the contract. On the basis of a
contractually agreed duration of 11 months and in view of the fact that the
Claimant rendered his services to the Respondent for one month only, the Dispute
Resolution Chamber concluded that the Claimant has to refund the Respondent
the amount of UU 85,227,273 (10/11 of UU 93,750,000).
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, player X, is rejected.
Player X, XX / Club Y, YY
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2.
The counterclaim of the Respondent / Counter-Claimant, Y FC, is partially
accepted.
3.
The Claimant / Counter-Respondent, player X, has to pay the amount of UU
85,227,273 to the Respondent / Counter-Claimant, Y FC, within 30 days as from the
date of notification of this decision.
4.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% p.a. will apply as of expiry of the fixed time limit and the
present matter shall be submitted to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
5.
The Respondent / Counter-Claimant, Y FC, is directed to inform the Claimant /
Counter-Respondent, player X, 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
For the Dispute Resolution Chamber:
Markus Kattner
Acting General Secretary
Encl: CAS directives
Player X, XX / Club Y, YY
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