Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 February 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Carlos Soto (Chile), member
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player
Player A, X,
as Claimant
against the club
Club B, Y,
as Respondent
regarding an employment related contractual dispute
arisen between the player and the club.
I.
Facts of the case
1.
On 27 June 2006, the Y club B (hereinafter : the club) concluded an
employment contract with the X player A (hereinafter : the player) for the
period from 27 June 2006 until 25 December 2006. Art. 6 par. 1 of the said
agreement determines that the salary of the player is established according to
the so-called “staffing plans” without any value indication.
2.
The same day, the two parties had concluded and signed a “supplementary
agreement” granting the player, inter alia, a monthly salary of USD 7,000 net.
According to a clause in the said agreement, it constitutes an integral part of
the employment contract concluded between the two parties.
3.
The employment contract stipulates in art. 3 par. 4 that the club ensures the
player’s rehabilitation and, in art. 3 par. 6, that the club takes all measures for
his recovery and pays all the expenses for this recovery if the incapacity of the
player [to play] was caused by carrying out his professional duties.
4.
On 13 February 2007, the player lodged a complaint against the club in front
of FIFA and claimed that he had not received the salaries of the five last
months and he requested that the club be ordered to pay him USD 35,000.
5.
The player claims that after having allegedly played six matches for the club,
he injured his meniscus during a match on 10 September 2006. In order to
prove this diagnosis, the player submitted a confirmation of a medical institute
in Z dated 12 September 2007 that corroborated his lesion of the meniscus of
the right knee. According to the player, he contacted the club’s doctor after
this match and asked him for medical treatment, but the club allegedly did not
want to arrange and pay for the medical treatment and therefore, he claims
that he had to go to Z in order to get adequate cure. The player alleges that
the club never wanted him to come back to Y because of his medical needs
and its incapacity to medically assist him for his rehabilitation. The two parties
confirm that the player had not returned to the club since September 2006.
6.
The club contests that the player had contacted the club’s doctor after the
match of 10 September 2006. It alleges that the injury was neither indicated in
the match register nor in the injury register of the club. The club equally
contests having received any results of a possible medical examination of the
player. According to the club, the player left on 11 September 2006 without
permission and never returned since. To found this allegation, the club
maintains having addressed two letters to the player after his departure asking
for an explication for his absence.
7.
The club admits that the player has never received his salaries because he was
absent. Nonetheless, the club confirms its intention to pay the player his
salaries “for the period of the employment agreement validity”. However, the
club alleges that according to the employment contract of the player, the
_________________________________________________________________________________________________________________
Player A, X / Club B, Y
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salary for the period from 27 June 2006 to 25 December 2006 amounts to USD
2,638.72.
8.
Furthermore, the club regrets that the player did not contact the Y Football
Federation in compliance with art. 7 par. 1 of the employment contract, which
stipulates that such dispute “should be resolved” at the Y Football Federation.
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 13 February 2007. Consequently, the
Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: 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 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2008) the Dispute Resolution Chamber is competent to deal
with the matter at stake, which concerns an employment-related dispute with
an international dimension between a X player and a Y club.
3.
For the sake of completeness, the Chamber wished to stress that the clause
contained in art. 7 par. 1 of the employment contract did not constitute a
binding clause of choice of jurisdiction and thus did not influence the
Chamber’s competence to decide on the case at hand.
4.
Furthermore, the Chamber analysed which regulations should be applicable as
to the substance of the matter. In this respect, it confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of
Players (edition 2008), and considering that the present claim was lodged on
13 February 2007, the previous version of the regulations (edition 2005;
hereinafter: 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 carefully studied the facts outlined above as well as
the entire documentation on file. In this respect, the Chamber noted that on
27 June 2006 the parties involved concluded an employment contract for the
period from 27 June 2006 until 25 December 2006. Moreover, the Chamber
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Player A, X / Club B, Y
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acknowledged that according to art. 6 par. 1 of the said employment
agreement, the salary of the player is established according to the so-called
“staffing plans”.
6.
Continuing, the members of the Chamber took note that on the same day, the
two parties had concluded and signed a “supplementary agreement” granting
the player, inter alia, a monthly salary of USD 7,000 net and that this
agreement was stipulated to constitute an integral part of the employment
contract concluded between the parties involved.
7.
Furthermore, the Chamber acknowledged that the player claims that he has
not received his salaries of the last five months and that he requests that the
club be ordered to pay him USD 35,000.
8.
Moreover, the members of the Chamber took into account that the club
admits that the player has not received his salaries because he was absent from
the club without the club’s authorization. The Chamber also took note that the
club has failed to present the two letters that it allegedly had addressed to the
player asking for his explanation for his absence, in spite of having been
solicited to do so. On the other hand, the Chamber emphasized that the club
confirms its intention to pay to the player his salaries “for the period of the
employment agreement validity”.
9.
In view of the aforementioned, the Chamber derived from the statements of
the club that it had, in principle, acknowledged its debt towards the player. In
this context, the members of the Chamber pointed out that the club has not
contested the player’s claim that the last five months of the duration of the
contract remain unsettled.
10.
However, the Chamber acknowledged that the club alleged that the player’s
salary is fixed in accordance with art. 6 par. 1 of the employment contract and
that the salary for the period from 27 June 2006 to 25 December 2006 amounts
to USD 2,638.72.
11.
With regard to the salary calculation, the Chamber pointed out that the player
bases his claim on the so-called “supplementary agreement” signed by the two
parties and granting the player a monthly salary of USD 7,000. In this respect,
the Chamber wished to stress that the club had never contested the existence
or the validity of the aforementioned “supplementary agreement”, which was
duly signed by and between the two parties involved. Furthermore, the
Chamber stated that the club was not able to prove that the amount
admittedly due to the player and apparently calculated on the basis of the
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Player A, X / Club B, Y
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“staffing plan” consisted of the sole remuneration due to the player in the
context of his employment contract. In fact, no documentary evidence relating
to the amount of USD 2,638.72 had been presented by the club. The members
of the Chamber made it clear that - on the grounds of the facts and evidence
provided by the parties - the only basis that could be taken into consideration
for the calculation of the player’s monthly salary was the said “supplementary
agreement” concluded on the same day as the employment contract, on 27
June 2006, and thus conferring the player a monthly salary of USD 7,000.
12.
For the sake of good order, the Chamber emphasized that there was no need
to elaborate on the question as to whether or not an authorization to leave
was granted by the club to the player, even if no evidence of the allegations
made in this respect was presented in the light of the fact that the club freely
acknowledged its debt towards the player.
13.
In view of the aforesaid and in order to calculate the amount undisputedly due
to the player, the Chamber took into account that the club had acknowledged
that it owed the player his salaries for the “period of the employment
agreement validity” and that it had not contested the player’s claim that the
final five monthly salaries remain outstanding.
14.
On account of all of the above, the Dispute Resolution Chamber decided that
the club has to pay USD 35,000 to the player and thus fully accepted the
player’s claim.
III.
Decision of the Dispute Resolution Chamber
1.
The claim submitted by the Claimant, Player A, is accepted.
2.
The Respondent, club B, is ordered to pay the amount of USD 35,000 to player
A within 30 days as of notification of the present decision.
3.
If the aforementioned amount is not paid within the stated deadline, an
interest rate of 5% per year shall apply, as from expiry of the stated deadline,
and the matter shall be submitted to FIFA’s Disciplinary Committee for its
consideration and decision.
4.
The player A is directed to inform club B directly and immediately of the
account number to which the remittance is to be made, and to notify the
Dispute Resolution Chamber about any receipt of payment.
5.
According to art. 61 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of
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Player A, X / Club B, Y
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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:
__________________________________
Jérôme Valcke
Secretary General
Enclosed: CAS directives
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Player A, X / Club B, Y
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